Philadelphia Criminal Defense Blog

Zak Goldstein 4/1/22 Zak Goldstein 4/1/22

Attorney Goldstein Wins New Trial in Superior Court Appeal of First Degree Murder Case

The Superior Court has decided the case of Commonwealth v. V.G., reversing that defendant’s conviction for first degree murder and the accompanying mandatory sentence of life without parole. In this case, the evidence introduced at trial showed that the defendant attended a house party. During the party, he was assaulted and robbed by a larger man. He pulled a gun and fired it, shooting and killing the man who had robbed him and shooting and injuring the friend of that man who was rapidly approaching him as if he too might have had a gun. The defendant testified at trial to the above facts and that he had acted in self-defense. Despite his testimony, the trial judge announced that he did not believe the defendant and refused to provide him with the jury instructions for self-defense and voluntary manslaughter. The defendant was convicted and sentenced to life without parole.

V.G. retained Attorney Goldstein and filed an appeal to the Pennsylvania Superior Court. On appeal, Attorney Goldstein argued that the trial court had unfairly deprived V.G. of his entire defense by refusing to instruct the jury on the defenses of self-defense and voluntary manslaughter. The standard for whether a jury instruction relating to a defense should be provided to the jury is solely whether there is some evidence in the record that would support the instruction. In this case, the defendant had specifically testified to his actions and that he took them in self-defense, so there was at least some evidence in the record to support both defenses. The trial judge had erred in simply choosing not to believe the defendant, whereas the question of whether he was telling the truth should have gone to the jury.

The Superior Court agreed. It reversed the defendant’s conviction and remanded the matter for a new trial. V.G., who would have had to serve a life sentence for first degree murder, will now 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 2/3/22 Zak Goldstein 2/3/22

PA Superior Court: Trial Counsel Provided Ineffective Assistance in Advising Defendant Not to Testify

The Pennsylvania Superior Court has decided the case of Commonwealth v. Washington, holding that a defense attorney was ineffective when he gave incorrect legal advice that persuaded his client not to testify at his own trial. This decision is significant because it requires attorneys to provide correct and competent advice when advising their clients whether to testify at trial. Defense attorneys must have a thorough understanding of the rules of evidence when advising their clients whether to testify or even go to trial. This decision provides additional protections to criminal defendants.

Commonwealth v. Washington

Police observed a disturbance outside of a Lancaster City restaurant and lounge. The officers made contact with the involved parties, one of whom was the defendant. The defendant became combative with the officers, yelled profanities, and refused to be arrested. As a result of the defendant’s behavior, the officers used a taser on him to “control the situation.” The defendant was then subsequently arrested and was charged with terroristic threats, resisting arrest, and other related offenses.

The defendant was then taken to Lancaster County Prison. While in prison, he allegedly told his cellmate that he wanted to kill the officers involved in his arrest. According to his cellmate, the defendant solicited him in plotting to kill the officers. The cellmate reported the defendant’s plot to the authorities and gave the names of the specific officers that the defendant allegedly intended to kill. As a result of this, the Commonwealth charged the defendant with four counts of criminal solicitation to commit homicide. The defendant then proceeded to a jury trial on the solicitation charges. At this trial, the cellmate was the main witness against the defendant.

At the conclusion of the trial, the jury convicted the defendant of three counts of criminal solicitation to kill the officers involved in his original arrest. The trial court sentenced the defendant to a term of 25 ½ to 60 years’ incarceration. The defendant then filed an appeal which was denied. He also declined to file a petition for allowance of appeal with the Pennsylvania Supreme Court. The defendant then filed a Post-Conviction Relief Act (“PCRA”) petition alleging ineffective assistance of counsel. However, for reasons that will not be explored in this blog, it was denied. The defendant then filed another PCRA petition. The defendant raised several issues, including that his trial counsel was ineffective in advising him not to testify at trial.

The trial court held a PCRA hearing. At this hearing, defendant’s original trial counsel could not recall if he and Appellant had any pre-trial conversation regarding whether the defendant would testify, but if he did have such a conversation, it would have been “very brief.” However, the trial counsel did state that the defendant turned to him and said “this is not going well, I need to testify…because I need to be able to explain to the jury how [the cellmate] got this information.” At this point, the defendant and trial counsel discussed whether the defendant should testify. The trial attorney then told the defendant that “I don’t want you to get on the stand because the prosecutor could bring up the aggravated assault conviction and then the jury…will think you’re violent.” The trial attorney believed that if the defendant were to testify his conviction for aggravated assault and the details of that conviction would come in for impeachment purposes. Based on that belief, the trial attorney advised the defendant not to testify.

At the hearing, the trial attorney admitted that if the aggravated assault conviction was not admissible for impeachment purposes, “then there would have been no reason to advise [the defendant not to testify]” because he really wanted to explain to the jury how his cellmate got that information. Though the defendant also had a burglary conviction that could have been used for impeachment purposes, the trial attorney stated that he “wasn’t even thinking about the burglary conviction.” Additionally, the trial attorney testified that the defendant was “not a foolish man” and therefore did not have any concerns that the defendant would have “opened the door” to allowing the prosecutor to cross the defendant on his prior aggravated assault conviction. Based on this advice not to testify and the reasons for it, the defendant did not testify at this trial.

The defendant also testified at the PCRA hearing. He testified that prior to trial there was no understanding that he was going to testify. However, as the trial progressed, he told trial counsel that he “wanted to testify so [the jury] could know the whole story as to how any information that was on [his] paperwork was being transmitted by [his cellmate].” Specifically, the defendant would have explained that he had his paperwork in his cell and this was how the cellmate knew the names of the officers involved in Appellant’s first case. The defendant confirmed that his trial counsel told him that if he testified the jury would hear about this prior aggravated assault conviction and he relied on his advice when deciding not to testify.

Following the hearing and submission of post-hearing briefs, the trial court denied the defendant’s PCRA petition. The defendant then filed a timely notice of appeal. The Superior Court then denied his appeal. Undeterred, the defendant then filed a petition for re-argument before an en banc panel of the Superior Court. On appeal, the defendant raised three issues, however for purposes of this blog, only the issue of whether trial counsel’s advice concerning his aggravated assault conviction was so unreasonable that the defendant did not and could not have made a knowing and intelligent decision not to testify at trial.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the lower court’s decision and granted the defendant a new trial. In making its decision, the Superior Court reviewed prior case law and the rules of evidence. Rule 609 of the Pennsylvania Rules of Evidence allows for a witness to be impeached with a prior conviction for a crime if it involves dishonesty or a false statement (also referred to as “crimen falsi”). The Commonwealth conceded that aggravated assault was not a crime that involved crimen falsi. Additionally, there was a prior Pennsylvania Supreme Court decision that held that a defense attorney provided ineffective assistance of counsel when he advised a defendant to waive his right to testify because he could be impeached with his prior drug and firearms convictions.

The Superior Court also agreed that that the trial attorney’s advice to the defendant was improper. Additionally, the Superior Court did not find that the fact that the defendant had a prior burglary conviction, that is a crimen falsiconviction, relevant because the trial attorney specifically testified that his sole reason for advising the defendant not to testify was because of his prior aggravated assault conviction. Further, the Superior Court was not concerned that the defendant’s testimony was probably speculative. The relevant inquiry is whether his decision not to testify would have been different absent his trial attorney’s ineffectiveness. In this case, it is clear that the defendant would have testified had his attorney provided competent legal advice. Therefore, the defendant’s convictions are vacated and he will get a new trial.

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Zak Goldstein 1/31/22 Zak Goldstein 1/31/22

PA Superior Court: Police Officer May Not Offer Plea to Summary in Felony Case Without District Attorney's Permission

Criminal Defense Lawyer Zak Goldstein — Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Martinez-Santiago, holding that a plea deal that was negotiated between a police officer and a defendant at the preliminary hearing was invalid due to the officer’s failure to obtain the consent of the district attorney prior to entering into the agreement. This decision is concerning because in counties outside of Philadelphia, defendants and police officers will often negotiate plea deals at the preliminary hearing. This decision holds that the respective district attorney’s offices do not have to honor those plea agreements and can proceed to re-arrest these defendants if the agreement is not to their liking. The defendant in this case thought his felony charges had been resolved with a plea to summaries, but the district attorney was able to reinstate the felony charges despite the fact that the arresting officer and the defendant had resolved the case at the preliminary hearing.

Commonwealth v. Martinez-Santiago

The defendant was arrested by a Pittston Township Police Officer after he allegedly stole a pack of cigarettes from a gas station and physically assaulted the responding officers when he was confronted by them. The defendant was originally charged with two counts of aggravated assault (graded as a felony of the first degree), one count of resisting arrest (graded as a misdemeanor of the second degree), two counts of simple assault (graded as a misdemeanor of the second degree), one count of disorderly conduct (graded as a misdemeanor of the third-degree), and one summary count of retail theft.

About a month after he was arrested, the defendant was scheduled for his preliminary hearing. At his preliminary hearing, the defendant negotiated a plea agreement with one of the officers involved. Specifically, the defendant agreed to withdraw all the charges against the defendant, with the exception of the retail theft charge, and then add two counts disorderly conduct which were graded as summary offenses. Notably, this agreement was not in writing. The defendant immediately agreed to the deal and then was sentenced in front of the Magisterial District Judge.

About a month after the defendant entered into this plea deal, the Commonwealth re-filed the original charges against the defendant. A preliminary hearing was held and the same Magisterial District Judge who accepted the plea held the charges. The case was transferred to the Court of Common Pleas of Luzerne County for trial. After his case was held for court, the defendant filed a motion to dismiss the re-filed charges. Specifically, the defendant argued that the proceedings were being held in violation of the compulsory joinder pursuant to Pa. C.S. § 110(a)(1) and that they violated the double jeopardy clauses of the United States and Pennsylvania Constitutions. The trial court denied the defendant’s motion to dismiss, but the court also concluded his motion was “not frivolous.” The defendant then filed a timely notice of appeal.

On appeal, the defendant argued that the officer was authorized to withdraw the felony and misdemeanor charges without obtaining approval of the District Attorney’s office. The defendant argued that Rule 551 of the Pennsylvania Rules of Criminal Procedure gives the officer authority to withdraw charges. Therefore, in the instant case, the officer was the Commonwealth’s “designee” and therefore was acting under the color of his authority when he sua sponte negotiated and implemented the plea agreement.

What is Rule 551 of the Pennsylvania Rules of Criminal Procedure?

Rule 551 of the Pennsylvania Rules of Criminal Procedure states: “In any court case pending before an issuing authority, the attorney for the Commonwealth, or his or her designee, may withdraw one or more of the charges. The withdrawal shall be in writing.”

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the trial court’s order. The Superior Court rejected the defendant’s argument that the officer was an official “designee” of the Commonwealth. The Superior Court held that “a police officer does not become a designee simply by virtue of his mere presence at a proceeding.” According to the Superior Court, there must be “some documentation or corroboration…to establish the existence of such a delegation of authority by the Commonwealth to a [police] officer.” Additionally, the Superior Court held that this plea agreement was not valid under Rule 551 because it was not done in writing as required by the statute. Therefore, because of a lack of corroborating lack of documentation, the defendant’s plea agreement was “unsuccessful and legally insufficient.” Finally, the Superior Court held that the Magisterial District Judge did not have jurisdiction to transform the preliminary hearing into a guilty plea hearing because the felony and misdemeanor charges against the defendant “were never legitimately withdrawn” because the court did not have “proper authorization or documentation.” As such, the defendant will have to face trial on the previously withdrawn felony and misdemeanor charges.

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Zak Goldstein 1/11/22 Zak Goldstein 1/11/22

PA Superior Court: Hearsay Alone Insufficient at Preliminary Hearing to Prove Defendant in Particular Committed Crime

The Pennsylvania Superior Court has decided the case of Commonwealth v. Harris, holding that the Commonwealth must present admissible non-hearsay evidence at a preliminary hearing to establish that a crime was committed and that the defendant was the actual person who committed the crime. It it is not enough to present some live testimony to show that a crime was committed and then use hearsay to show that the defendant committed the crime. Instead, some live, admissible testimony or evidence must be presented to show that it was the defendant who actually committed the crimes charged. This is an important decision which further recognizes the fact that the preliminary hearing is one of the only safeguards against prolonged detention prior to trial in a case where the Commonwealth has little or no competent evidence.

Commonwealth v. Harris

A Philadelphia Police Officer received a radio call for a gunshot victim in Philadelphia. When he arrived, the officer found the complainant bleeding from gunshot wounds to his right wrists and left thigh. The complainant was then taken to a nearby hospital. A short time later, a Philadelphia Detective obtained a statement from the complainant about what happened. The complainant stated that the defendant and his brother confronted him about stealing drugs from them. During the confrontation, both men pulled out guns and began firing, striking the complainant as he ran away. Based on this information, the detective then went to the crime scene and found multiple projectiles and fired cartridge casings. The detective then returned to the hospital with photographs of the defendant and his brother and the complainant identified them as the men who shot him.

For unknown reasons, the Commonwealth waited two years before finally filing its criminal complaint against the defendant. The defendant was arrested and charged with attempted murder, aggravated assault, VUFA offenses, and other related offenses. The complainant would not attend the defendant’s preliminary hearings. As such, the Commonwealth called the detective who testified to the above stated facts. The defense attorney objected to this testimony at his preliminary hearing because it was hearsay evidence. The defendant was then held for court on all charges. After the defendant’s preliminary hearing was decided, the Pennsylvania Supreme Court issued its decision in Commonwealth v. McCelland, which held that the Commonwealth cannot rely on hearsay alone to establish a prima facie case at a preliminary hearing. The defendant then filed a motion to quash the charges against him and the trial court granted his motion.

The Commonwealth then filed an appeal. On appeal, the Commonwealth argued that McCelland was not applicable to the defendant’s case because it had presented other non-hearsay evidence at the preliminary hearing. According to the Commonwealth, so long as the prosecution presents some direct evidence for one element of a charged offense, then it is allowed to rely on hearsay alone for the other elements of the crime, including the identification of the defendant. The Commonwealth argued that Rule 542 (E) of the Pennsylvania Rules of Criminal Procedure permits this.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the trial court’s order quashing the charges against the defendant. First, the Superior Court stated that the preliminary hearing is not a formality and that its purpose is to “prevent a person from being imprisoned or required to enter bail for a crime...for a crime which there is no evidence of the defendant’s connection.” In making its decision on the Commonwealth’s appeal, the Superior Court analyzed both the relevant statutes and prior case law addressing these issues. First, the Superior Court looked at Rule 542 of the Pennsylvania Rules of Criminal Procedure which states that at a preliminary hearing, the court must determine whether there is a prima facie case that an offense has been committed and that the defendant has committed it.

Based on these principles, Superior Court held that at the preliminary hearing the Commonwealth must present admissible non-hearsay evidence to establish both whether there is a prima facie case that a crime was committed and that the defendant committed said crime. In other words, the Commonwealth must present admissible non-hearsay evidence to establish the elements of the crime and that the defendant was the perpetrator of said crime. Additionally, the Superior Court rejected the Commonwealth’s argument that it can establish any element of the charges offenses with hearsay once it adduces non-hearsay evidence as to any element of the crime. The Superior Court opined that hearsay evidence is admissible, but it must be used to either corroborate direct evidence regarding an element of the crime or crimes charged or evidence that has to do with “the value of the property for grading purposes, lab reports and such [that] can be introduced because they do not materially affect the defendant’s due process rights.” Therefore, the trial court’s order to quash the charges against the defendant is granted, and the Commonwealth will have to rearrest him and present admissible non-hearsay evidence at his trial if they wish to proceed with the case against him.