Philadelphia Criminal Defense Blog

Zak Goldstein 1/9/23 Zak Goldstein 1/9/23

PA Supreme Court: Multiple Third-Degree Murder Convictions at the Same Time Require Life Without Parole

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Coleman, holding that a criminal defendant who kills three people during the same incident and is then convicted of third degree murder for each killing is subject to the mandatory life without parole sentencing enhancement that applies for multiple convictions for third degree murder. Many statutes that impose enhanced sentences for subsequent offenses require that the offenses take place at different times, but the Supreme Court has held that killing more than one person and then getting convicted of life without parole requires a mandatory life sentence pursuant to 42 Pa. C.S. § 9715(a).

The facts of Commonwealth v. Coleman

Police observed the defendant make an illegal left turn in a white Hyundai. They approached the vehicle when it stopped at a gas station. The defendant did not have a driver’s license, and when additional officers arrived as backup, the defendant fled in the vehicle. This led to a high-speed chase. The defendant eventually crashed the Hyundai into two vehicles at an intersection. The force of the impact caused the vehicle to explode into flames, killing all three occupants of one of the vehicles instantly. Prosecutors charged the defendant with three counts of murder.

At trial, the defendant was convicted of three counts murder in the third degree, amongst other charges. Before sentencing the Commonwealth filed a notice of intent to proceed under Section 9715(a) of the Sentencing Code. The trial court declined to apply the sentencing enhancement and instead imposed consecutive terms of 20 to 40 years of incarceration for each of the defendant’s third-degree murder convictions. The defendant was ultimately sentenced to an aggregate term of 70 to 140 years of incarceration.

The Appeal

The Commonwealth appealed, arguing that the statute requires life imprisonment even where a defendant commits multiple counts of third degree murder at the same time but did not have any prior convictions for murder.

Section 9715 of the Sentencing Code, entitled “Life imprisonment for homicide,” provides:

(a) Mandatory life imprisonment.--Notwithstanding the provisions of section 9712 (relating to sentences for offenses committed with firearms), 9713 (relating to sentences for offenses committed on public transportation) or 9714 (relating to sentences for second and subsequent offenses), any person convicted of murder of the third degree in this Commonwealth who has previously been convicted at any time of murder or voluntary manslaughter in this Commonwealth or of the same or substantially equivalent crime in any other jurisdiction shall be sentenced to life imprisonment, notwithstanding any other provision of this title or other statute to the contrary.

The trial court wrote an opinion in which it argued thatSection 9715(a) was a recidivist sentencing statute and that the defendant was not a recidivist because, while he had been convicted of three counts of criminal homicide, he had never “previously” committed criminal homicide.

Both parties appealed to the Superior Court. The Superior Court ruled in favor of the Commonwealth. The Court found that the defendant should have been sentenced to life without parole. The Superior Court concluded that the defendant’s third-degree murder conviction at Count 1 of the Criminal Information constituted a prior conviction for purposes of applying Section 9715(a) when sentencing him for his convictions of third-degree murder at Counts 2 and 3 of the Criminal Information. The Superior Court therefore remanded the case for the trial court to sentence the defendant to life without parole.

The defendant filed a petition for allowance of appeal to the Supreme Court, and the Pennsylvania Supreme Court agreed to review the case. The Pennsylvania Supreme Court granted discretionary review to resolve the following issue:

Should the mandatory sentencing provision of 9715(a) apply to a case where the offenses and the deaths were simultaneous?

The Defendant argued that Section 9715 of the Sentencing Code should not be construed to apply to a case such as this one, where a single course of conduct caused multiple, instantaneous, simultaneous deaths and the convictions at issue were, at most, minutes apart. The term “previous” in the code is meant to refer to a prior conviction outside the current matter. The Commonwealth focused on principles of statutory construction and Section 9715(a)’s use of the phrase “previously been convicted at any time.” They further argued that the phrase should be interpreted literally, meaning that there is no previous conviction too remote, nor too recent, to be exempt from the rule.

Unfortunately, the Supreme Court decided with the Commonwealth. The Court ruled that § 9715 of the applies under these circumstances. § 9715(a) provides that any person convicted of third-degree murder in this Commonwealth who has previously been convicted at any time of murder must receive an enhanced sentence. The statute does not define any of the terms in this operative phrase. Giving the most pertinent terms their plain and ordinary meaning, the term “at any time,” the General Assembly made clear that there is no limitation relative to a person’s previous conviction that would preclude application of the sentencing enhancement insofar as it concerns § 9715(a). Thus, § to Section 9715(a), so long as a person convicted of third-degree murder has previously been convicted of murder at any point in time, the sentencing enhancement applies to that person.

The Supreme Court, therefore, affirmed the Superior Court’s ruling to vacate defendant’s judgment of sentence and remand for resentencing in accordance with § 9715.

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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. We have also won criminal appeals and PCRAs in state and federal court. 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 12/20/22 Zak Goldstein 12/20/22

PA Supreme Court: Judges Should Not Use Hypotheticals to Define Reasonable Doubt for Jury

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Drummond, holding that trial judges should not use hypothetical situations like making the decision to have surgery or purchase a house when describing reasonable doubt for a jury. This is an important decision because these hypotheticals often reduce the standard below what it should be; many people go through with purchasing a house or having a surgery even when they are not certain that it is the right thing to do. By avoiding the hypotheticals, judges can better ensure that juries probably understand how high of a standard beyond a reasonable doubt is.

The Facts of Drummond

Police arrested the defendant and a co-defendant for the murder of two people. At the conclusion of trial, the judge provided the jury with instructions as is normal in a criminal case. The controversy in this case centered on the judge’s definition of reasonable doubt. In this case, the judge used the hypothetical of making the decision to have surgery and equated making that decision as no longer having reasonable doubt. The trial attorney did not object to the judge’s hypothetical. The defendant was convicted, and his direct appeals were denied.

The defendant eventually filed a Post-Conviction Relief Act Petition. In the PCRA Petition, the defendant alleged that his trial attorney provided the ineffective assistance of counsel in failing to object to the court’s instruction on reasonable doubt. The trial court denied the PCRA, and the defendant appealed to the Pennsylvania Superior Court.

The Superior Court Ruling

The Superior Court affirmed the trial court’s denial of the PCRA Petition. That court concluded that an imperfect jury instruction does not trigger automatic reversal in collateral proceedings like PCRA litigation. The court also did not have a significant problem with the analogy, and it noted that other portions of the instruction aligned closely with the suggested reasonable doubt instruction in the Pennsylvania Suggested Standard Jury Instruction Manual. The Superior Court concluded because the instruction never relieved the Commonwealth of its burden of proof or removed the presumption of innocence, it was not reasonably likely that the jury applied a diminished reasonable doubt standard. The defendant then filed for allocatur to the Pennsylvania Supreme Court, and the Pennsylvania Supreme Court accepted the case.

The Supreme Court’s Ruling

The Pennsylvania Supreme Court limited its review to one issue: “[w]as trial counsel ineffective for not objecting to the trial court’s jury instruction on reasonable doubt?”

The standard for an ineffective assistance of counsel claim comes from the United States Supreme Court case Strickland v. Washington. Pennsylvania has adapted that standard and required a PCRA petition tis how that: (1) that the underlying claim has arguable merit; (2) that no reasonable basis existed for counsel’s actions or failure to act; and (3) that the petitioner suffered prejudice as a result of counsel’s error.

In assessing whether there is arguable merit, the Court first analyzed whether the jury instruction did not meet basic constitutional requirements as set in Boyde v. California, “whether there is a reasonable likelihood that the jury has applied the challenge in a way that violates the Constitution.”

Neither the United States Supreme Court nor the Pennsylvania Supreme Court have ever construed the United States Constitution or the Pennsylvania Constitution as flatly prohibiting hypotheticals or analogies. The Court, however, found that the jurors were told not to consider reasonable doubt objectively and dispassionately but instead in an emotional and personal way. This instruction therefore arguably violated due process because it allowed the jury to interpret the relevant burden in a way that was a “degree of proof below” proof beyond a reasonable doubt, thus meeting the arguable merit prong.

The Court therefore rejected the hypothetical and strongly suggest that it should not be used by trial courts. At the same time, however, the Court found that the trial court properly denied the PCRA petition because at the time of the decision, there was no opinion from a Pennsylvania appellate court in which a jury verdict had been invalidated due to the use of similar hypotheticals. Instead, the Superior Court had actually affirmed under these circumstances. Therefore, counsel could not have been under an obligation to predict that the law would change and to raise an objection. The Court therefore denied the appeal.

As the Court found that counsel acted reasonably, it did not reach the prejudice portion of the test. A PCRA petitioner must meet all three prongs of the test in order to show the ineffective assistance of counsel. If the petitioner cannot show even one element, then the petitioner will lose. This petitioner lost, but the case remains important because these hypotheticals may often contribute to a conviction by improperly lowering the Commonwealth’s burden.

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Zak Goldstein 12/11/22 Zak Goldstein 12/11/22

PA Superior Court: Prosecution May Cross Examine Defendant on Prior Arrests if Defendant Opens the Door

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Bullock, holding that where the defendant testifies in an unprompted manner that they’ve never been arrested before, the prosecution may then introduce evidence of prior arrests as impeachment evidence. Although there is a general rule that a defendant may not be cross examined on prior criminal convictions, that rule gives way to false testimony by the defendant which makes the prior convictions admissible impeachment evidence.

The Facts of Bullock

In 2018, the defendant’s children found the defendant passed out on the porch of their home. The children called the police. The police came to the scene, and they found the defendant stumbling, going in and out of consciousness, and smelling of PCP. The police arrested the defendant.

The children were placed with their grandparents. They then disclosed that the defendant, their mother, had allegedly been abusing them. The Commonwealth charged her with aggravated assault, strangulation, unlawful restraint, false imprisonment, and three counts of endangering the welfare of a child.

The Criminal Trial

The defendant proceeded by way of bench trial. The trial court found her guilty of the endangering the welfare of a child counts, but it acquitted her of everything else. The court sentenced her to time served to 23 months’ incarceration followed by a year of probation. She filed timely post-sentence motions. The court denied those motions, and she appealed to the Pennsylvania Superior Court.

The Issue on Appeal

At trial, the Commonwealth introduced evidence of the defendant’s prior conviction for public drunkenness. Her defense attorney objected to admission of that evidence, but the trial court overruled the objection and allowed the evidence to be admitted.

Pennsylvania has a statute which generally prohibits the Commonwealth from cross-examining the defendant themselves about prior convictions, even where the defendant testifies. The statute provides:

§ 5918. Examination of defendant as to other offenses
No person charged with any crime and called as a witness in his own behalf, shall be asked, or if asked, shall be required to answer, any question tending to show that he has committed, or been charged with, or been convicted of any offense other than the one wherewith he shall then be charged, or tending to show that he has been of bad character or reputation . . .

The statute, however, has exceptions that allow the Commonwealth to do so when:

(1) he shall have at such trial, personally or by counsel, asked questions of the witness for the prosecution with a view to establish his own good reputation or character, or has given evidence tending to prove his own good character or reputation; or
(2) he shall have testified at such trial against a co-defendant, charged with the same offense.

Here, the defense attorney asked the defendant if she used PCP or alcohol on the day in question, and she denied that she had consumed either. Later, on cross-examination, the prosecutor asked if she had ever used drugs or alcohol, and she denied that, as well. Obviously, that was untrue as the defendant had a conviction for public drunkenness. The prosecution then the evidence of that conviction.

Additionally, while testifying on direct examination, the defendant testified that she felt terrible that day, was not really sure what happened, and that she had never been arrested before. That was not true, however, as she had the prior conviction.

Following the denial of her post-sentence motions, she appealed the conviction to the Superior Court and challenged the trial court’s decision to allow the prior conviction into evidence.

The Superior Court’s Ruling on Appeal

On appeal, the Superior Court affirmed the conviction. The Court ruled that the trial court should not have allowed the prosecutor to ask if she ever used drugs or had ever used alcohol. She had not denied ever using them on direct examination; she had only denied using them that day. She had, however, suggested that she had never been arrested before. This was not true, and that statement did not come in response to the Commonwealth’s questioning but rather the questioning of her own attorney. Therefore, the Commonwealth properly impeached her with evidence of her prior conviction in response to her insistence that she had never been arrested before. The Superior Court therefore denied the appeal.

It is possible, however, that a subsequent lawyer could challenge trial counsel’s performance in a Post-Conviction Relief Act Petition as trial counsel should not have asked a question which opened the door to a prior conviction. Thus, the issue may be one of ineffective assistance of counsel rather than error by the trial court. Either way, the Court ruled that the conviction will stand.

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Zak Goldstein 11/7/22 Zak Goldstein 11/7/22

PA Superior Court: Trial Court Erred in Dismissing Case Where Commonwealth Sought to Proceed Without Victim

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

The Pennsylvania Superior Court has decided the case of Commonwealth v. Fitzgerald, finding both that statements made to emergency personnel are non-testimonial and therefore generally admissible under the confrontation clause. The court also held that the trial court erred in dismissing the case where the Commonwealth indicated that it wanted to proceed and planned to seek to introduce the complainant’s statements to those EMTs and responding officers in the complainant’s absence. The court recognized that in general, the remedy for failing to present a necessary witness at trial is that the trial court should find the defendant not guilty. Further, it is fairly well-established that statements made as part of calling for help in response to an emergency do not implicate the confrontation clauses of the state and federal constitutions. Therefore, the Superior Court reversed the trial court’s order dismissing the case and remanded the matter for a trial.

Commonwealth v. Fitzgerald

In this case, the defendant appeared for a non-jury trial after the Commonwealth had requested two continuances due to its failure to locate the complainant. For this third listing, the Commonwealth indicated that it would move forward without the complainant. The defendant moved to dismiss the charges, arguing that there had been no opportunity to cross-examine the complainant and that introducing the complainant’s out-of-court statements in her absence would violate the confrontation clause. The confrontation clause gives a defendant the right to confront their accusers; this is generally accomplished through cross-examination.

The Commonwealth disagreed, contending that it would not introduce any evidence that would violate the confrontation clause. The trial court allowed the Commonwealth to make an offer of proof, and the Commonwealth announced its intention to enter a 911 call made in an emergency situation, to present photographs from police officer’s body cameras and observations of the scene, and to play a portion of body camera footage that showed the victim interacting with EMS. The Commonwealth suggested that it did not intend to introduce any hearsay statements through police officers.

After hearing this offer of proof, the trial court ruled that the proffered statements would be testimonial. The court therefore dismissed the charges.

The Proffered Evidence

The evidence in question was the following:

The complainant made a 911 call and informed the operator that her boyfriend, the defendant, had assaulted her and threatened her over a period of hours throughout the day. Pittsburgh Police Officer Tyler Newman responded to the 911 call and encountered the complainant, who indicated that the defendant had been physically assaulting and threatening to kill her over multiple hours. Officer Newman observed injuries on the complainant consistent with this story, and photographs of the injuries on her face, neck and collarbone were preserved from the officer’s body camera to be later introduced at the trial. EMS arrived on scene, and Officer Newman’s body camera captured a conversation between the complainant and a paramedic. The video showed that the paramedic questioned her to determine the extent of her injuries. Officer Newman also asked what she had been assaulted with, to which she replied she had been attacked by hand.

The police located the defendant based on the complainant’s description and found that the defendant was heavily intoxicated. They charged him with two counts of simple assault and one count each of terroristic threats and strangulation. The case was scheduled for a preliminary hearing. The complainant appeared for the preliminary hearing, and the defendant waived that hearing. Thus, his attorney never cross-examined the complainant.

The trial court dismissed the case, and the Commonwealth filed a motion to reconsider, attaching the transcript of the 911 call, transcript of the video, and still photographs. The trial court denied the motion to reconsider. The Commonwealth appealed.

The Superior Court’s Decision

First, the Superior Court rejected the defendant’s argument that the appeal should be quashed as interlocutory. As the trial court’s order resulted in the dismissal of the case, the order was a final order, and the Commonwealth therefore had the right to appeal.

Second, the Superior Court rejected the argument that the out-of-court statements were inadmissible due to the confrontation clause. The confrontation clause, as explained in the United States Supreme Court case of Crawford v Washington, prohibits out-of-court testimonial statements. Not all out-of-court statements are testimonial, however. Generally, statements are testimonial when they are intended to establish events for a subsequent criminal prosecution. Statements made in response to an ongoing emergency are often not testimonial.

Here, the complainant escaped from the defendant and went to a neighbor’s apartment. She called 911 in an attempt to obtain assistance from the police, not in order to provide a statement that would be used at a trial. The emergency was still ongoing, and follow-up questions asked by the operator were focused on assessing the threat to police and the victim to help with police response to the emergency. Citing the precedent of Davis v Washington, where a 911 call about an ongoing domestic disturbance was admitted as evidence and the US Supreme Court confirmed that the Confrontation Clause only applied to testimonial statements, the Superior Court concluded that the trial court in this case was mistaken in ruling in favor of the defense. Therefore, the trial court should not have even reached the issue of whether to dismiss the case because the statements themselves were admissible.

Finally, the Superior Court ruled that the trial court’s remedy was improper. The remedy for the Commonwealth seeking to proceed without a particular witness is to find a defendant not guilty following the close of the Commonwealth’s case; it is not to dismiss the case. Therefore, the Superior Court reversed the trial court’s ruling and remanded the case for trial.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Lawyers in Philadelphia

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. We have also won criminal appeals in state and federal court. 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.