Philadelphia Criminal Defense Blog

Zak Goldstein 4/4/23 Zak Goldstein 4/4/23

Third Circuit: Pennsylvania State Court Rules on Use of Co-Defendant's Confession Against Defendant Violate Confrontation Clause

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

The United States Court of Appeals for the Third Circuit has decided the case of Freeman v. Fayette, holding once again that Pennsylvania’s rules regarding the use of redacted statements by co-defendants against the defendant in a criminal case are unconstitutional. The Third Circuit’s decision is not technically binding on the state courts because the Third Circuit only addresses federal appeals. But because the Third Circuit eventually reviews many serious state decisions during federal habeas litigation, particularly in murder cases, the Third Circuit’s ruling could have a dramatic impact on Pennsylvania criminal procedure. In this case, the Third Circuit held once again that where a co-defendant gives a statement which implicates both the defendant and the co-defendant in the crime, redacting the co-defendant’s statement to remove the defendant’s name and replace it with “the other guy” or something similar doe snot adequately protect the defendant’s confrontation clause rights. In this case, the Court retired this point, but it did find that although the defendant’s rights had been violated, the violation amounted to harmless error because the evidence against the defendant was so strong.

The Facts of Freeman v. Fayette

The Commonwealth charged four men with robbery, kidnapping, and murder. One pleaded guilty before trial and agreed to testify against his co-conspirators. Three of the four co-defendants proceeded to trial. During the trial, the court heard testimony from various witnesses placing the four men together around the time of the crime. Finally, the Commonwealth used a statement by one of the remaining three co-defendants implicating the others. That defendant did not testify, and the statement was redacted but still referred to the other co-defendants as “the first guy" and "the second guy." The Commonwealth read the statement to the jury over the objections of the defense attorneys for those defendants. The judge instructed the jury that the statement was to be used only as evidence against the defendant who made the statement, not the co-defendants. The court also repeated this cautionary instruction at the end of the trial. A jury found all three men guilty of second-degree murder. The trial court sentenced them to the mandatory sentence of life without parole.

The Criminal Appeal

On appeal, the Pennsylvania Superior Court affirmed the defendant’s conviction, concluding that there was no Confrontation Clause or Bruton violation. After exhausting his appeals and post-conviction relief at the state level, the defendant filed a petition for a writ of habeas corpus in the federal district court. The district court concluded that the admission of the co-defendant's statement violated the defendant’s confrontation clause rights. The court also concluded that its admission was not harmless error, so the court granted the defendant’s writ of habeas corpus. The Commonwealth then appealed the decision to the Third Circuit Court of Appeals.

What is the Confrontation Clause, and what is a Bruton issue?

The Confrontation Clause, which is part of the Sixth Amendment, provides criminal defendants with the right to confront the witnesses against them. This means they have the right to cross-examine witnesses under oath at trial. In Bruton v. United States, prosecutors tried two defendants together for armed robbery. At trial, prosecutors used one of the defendant’s confessions against him, and the statement also implicated the co-defendant. The judge instructed the jury only to use the statement against the defendant, not the co-defendant. A jury convicted both men for the crimes charged. The Supreme Court ruled that the trial court violated the co-defendant’s right to confront and cross-examine despite the jury instruction because the trial court’s ruling essentially allowed the person who confessed to implicate the defendant without that person’s statement being subject to cross-examination.. Subsequent United States Supreme Court decisions have also held that redactions may not be sufficient unless they eliminate both the defendant's name and any reference to their existence. The state courts, however, have often allowed the Commonwealth to simply replace the defendant’s name with something generic like “the other guy.”

The Third Circuit’s Decision

Because the Commonwealth’s appeal challenged the district court’s ruling in habeas litigation, the Third Circuit was required to use a very deferential standard of review. Under the AEDPA, the mere fact that the state court was wrong is not enough to obtain relief. Instead, a court must first 1) determine whether there has been an error (in this case a Bruton violation), and then 2) determine whether the state court made a determination that was contrary to or an unreasonable application of clearly established federal law. A defendant must then also show prejudice. It is enough to show the trial judge was wrong; instead, the defendant must show that the trial judge was very, very wrong and that it likely affected the outcome of the proceedings.

Here, the Commonwealth argued that using "the first guy" and "the second guy" did not facially incriminate the defendant because these substitutes did not refer to him by name. The Commonwealth therefore argued that the statement did not facially incriminate the defendant and that any incrimination effect could come only inferentially. The Superior Court, however, has held that Bruton violates generally do not occur when a statement has been redacted and any incriminating effect arises inferentially.

The defendant argued that the redactions left it so obvious who the co-defendant was talking about that they offered insufficient protection, essentially making the statement directly accusatory. It named two perpetrators and left the two perpetrators unnamed, referring to them as "the first guy" and "the second guy." This made it so that the jury only needed to look up at the defense table and see the two co-defendants to identify who the statement implicated. Accordingly, the Third Circuit rejected the conclusions of the state courts that the statement did not violate Bruton. The Court had made similar rulings on numerous occasions, to the Court also found that the state courts clearly failed to apply federal law. Unfortunately, the Court also found that the evidence against the defendant was overwhelming and that he would have been convicted even without the statement, so the Court reversed the district court’s order granting the writ of habeas corpus. The defendant will therefore not receive a new trial despite the obvious violation.

Given the Third Circuit’s ruling, the case is not helpful for the individual defendant in this case. It is, however, very helpful for criminal defendants going forward as it once again sends a message to the state courts and Commonwealth that inadequate redactions do not render a co-defendant’s statement admissible against the defendant unless the defendant has a chance to cross-examine the co-defendant.

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Goldstein Mehta LLC Criminal Defense Attorneys

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 2/14/23 Zak Goldstein 2/14/23

Not Guilty: Full Acquittal for Man Accused of Threatening Off Duty Police Officer

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire, recently obtained a full acquittal on charges of terroristic threats and harassment for a client who had been charged with threatening an off-duty police officer. In the case of Commonwealth v. KO, the officer claimed that he was walking his dog in a park in Northeast Philadelphia when KO’s dog ran up to the officer’s dog while not on a leash. KO came over to get his dog, and the officer told him to put the dog on a leash. KO did so, but the officer claimed that KO said he would shoot the officer and his dog because the officer suggested that he might let his dog off the leash to bite KO’s dog.

The officer testified that not only did KO threaten to shoot him and his dog once, but he actually made the comment multiple times and put his hand in his jacket as if he had a gun before putting the dog on a leash and walking off. The officer got KO’s license plate number when KO left the park, and he later reported the incident to a detective. The detectives filed charges of terroristic threats and harassment against KO.

KO retained Attorney Goldstein, and Attorney Goldstein obtained a full acquittal at the subsequent Philadelphia Municipal Court trial. At trial, Attorney Goldstein cross-examined the officer on the fact that he never actually saw a gun and that both men were just yelling at each other during the stressful situation of getting the dog back on the leash. Attorney Goldstein then called character witnesses as well as KO to testify that KO had only said something to the officer because the officer had threatened him first and in fact had a gun, whereas KO did not.

The Municipal Court Judge promptly found KO not guilty of all charges, and the charges can now be expunged. As KO holds a professional license and a job that requires a background check, the ability to obtain a full acquittal and an expungement was critical for him. He was able to do both.

Ultimately, the terroristic threats statute appears to be very broad on its face. It covers far more than terrorism and applies to anything that appears to be a threat. The statute provides:

(a) Offense defined.--A person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat to:
(1) commit any crime of violence with intent to terrorize another;
(2) cause evacuation of a building, place of assembly or facility of public transportation; or
(3) otherwise cause serious public inconvenience, or cause terror or serious public inconvenience with reckless disregard of the risk of causing such terror or inconvenience.

Terroristic threats is a misdemeanor of the first degree which carries up to five years in prison and can result in a permanent disability from possessing a firearm under federal law. At the same time, the statute requires not just a threat but the actual intent to terrorize. In numerous cases, the appellate courts in Pennsylvania have held that threatening words said during a transitory moment of anger as part of an argument do not qualify as a terroristic threat under the law. Accordingly, even if KO had said what the officer alleged, the judge properly applied the law in acquitting KO.

Facing criminal charges? We can help.

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

If you are facing criminal charges or under investigation by the police, we can help. Our experienced and understanding Philadelphia criminal defense attorneys have successfully defended clients and obtained new trials after conviction in cases involving charges as serious as Aggravated Assault, Rape, Murder, and Fraud. We have also won criminal appeals and post-conviction relief in state and federal court. At the same time, our extensive experience in the Philadelphia criminal justice system and skills in the courtroom often allow us to obtain outcomes like this one even in relatively less serious cases in the Philadelphia Municipal Court. We offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with a defense attorney today.

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.

Facing criminal charges? We can help.

Zak Goldstein 12/20/22 Zak Goldstein 12/20/22

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

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.