Philadelphia Criminal Defense Blog

Zak Goldstein 9/8/23 Zak Goldstein 9/8/23

Federal Habeas: Third Circuit Finds Trial Counsel Ineffective for Failing to Impeach Key Prosecution Witness or Object When Judge Instructed Witness to Testify Favorably for Commonwealth

Criminal Defense Attorney Zak T. Goldstein, Esquire

The United States Court of Appeals for the Third Circuit has decided the case of Rogers v. Superintendent Greene SCI, finding that the district court should have found the defendant’s trial attorney provided the ineffective assistance of counsel when he failed to impeach the Commonwealth’s main witness with prior inconsistent statements or object when the trial judge threatened to have the witness charged with perjury if the witness did not testify favorably for the Commonwealth. This is an important decision; federal habeas petitions can be very difficult to win. Fortunately, the Third Circuit recognized that defense attorneys must pay attention during trial and advocate strategically for their clients. They may not remain silent in the face of obvious misconduct or fail to use critical impeachment evidence against the Commonwealth’s star witness.

The Facts of Rogers

In Rogers, the defendant had been convicted of third-degree murder. The evidence introduced at trial suggested that a man named Hayes saw Rogers standing on a corner. Hayes approached Rogers, the men had words, and they both pulled out guns. They began shooting at each other. A third man across the street started shooting, as well. Hayes drove away. Rogers, Hayes, and the third man survived, but Rogers’s friend Green was killed by a stray bullet from Rogers’s gun.

Multiple witnesses told the police that Hayes fire first and Rogers defended himself. A final witness, Singleton, initially refused to make a statement. He later told the police that Hayes never fired a gun. Three years later, after Hayes was arrested and charged in the shooting, Singleton changed his story and said that Hayes had shot at Rogers. Singleton continued to maintain, however, that Rogers fired first and that Hayes acted in self-defense.

The Commonwealth charged both Hayes and Rogers with first-degree murder, but it tried them separately. Hayes’s trial was first. Singleton and a witness named Summers both testified. Singleton told his recent, new story that Hayes shot at Rogers but only in self-defense. Summers changed her story. She had told the police that Hayes shot first, but at trial, she said she didn’t see who fired first. The jury acquitted Hayes of all charges.

Rogers’s trial took place a week later. Summers again testified that she did not see who fired first. For the first time ever, Singleton told the jury that Rogers acted in self-defense and Hayes fired first. Later in the day, the trial judge excused the jury and then admonished Singleton for the inconsistent testimony. The judge told Singleton that he had committed perjury and that if Singleton continued to play games, he would receive the maximum consecutive sentence for perjury. The judge told Singleton to “do some long hard thinking” before resuming his testimony because if he said Hayes shot first again, it would be perjury. Rogers’s attorney inexplicably failed to object.

Trial resumed the next day. This time, Singleton testified that his claim that Hayes fired first was wrong and actually Rogers had fired first. Singleton said he made a mistake because he was nervous. Rogers’s attorney did not object or cross-examine Singleton on the change in testimony. The jury found Rogers guilty of third-degree murder, and the judge sentenced him to 16 - 32 years’ incarceration.

The Appeals

Rogers appealed. The Superior Court affirmed. He then filed a Post-Conviction Relief Act (“PCRA”) petition. In the petition, he argued that he received the ineffective assistance of counsel when trial counsel failed to object when the judge threatened Singleton and told him how to testify and that his trial counsel should have cross-examined Singleton on the change in testimony. The PCRA court denied the petition. The Superior Court eventually affirmed. Rogers filed a similar petition in federal court under 28 U.S.C. § 2254. The federal district judge denied the habeas petition. Rogers appealed to the Third Circuit.

The Third Circuit reversed. It recognized that when a state prisoner’s attorney fails to provide the effective assistance of counsel, a federal court has the power to grant relief. The power to grant relief is limited, however. A federal court must presume that the state courts’ factual findings were correct and defer to the state court’s rulings on claims adjudicated on the merits unless they were 1) were “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” or 2) were “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” This standard is difficult to meet.

The Third Circuit’s Ruling

Here, the Court found that Rogers met that standard. Trial counsel had testified at an evidentiary hearing that his decision was strategic; he did not see any basis for objecting to to the judge’s threats, and he thought that the jury would not find Singleton credible. He therefore decided to rely on Summers’s testimony. The lower courts accepted this explanation, but the Third Circuit rejected it. It found that Pennsylvania appellate courts have warned against such judicial conduct for decades and granted new trials in cases where judges behaved in this manner. The Court also disapproved of the fact that trial counsel did not appear to have watched the first trial or reviewed the testimony from that trial. The Pennsylvania Supreme Court has prohibited trial judges from questioning witnesses in a manner that suggests the judge has an opinion on the testimony, and so trial counsel should have objected. Counsel also should have cross-examined Singleton on the change in the story in order to highlight the inconsistencies for the jury. Singleton was the only real witness against Rogers, so discrediting Singleton could have resulted in a different verdict. As Singleton’s testimony was the most important, Rogers suffered prejudice in that he may have been acquitted or received a new trial on appeal had trial counsel properly objected and impeached Singleton.

Therefore, the Third Circuit vacated the conviction and granted Rogers a new trial. Ultimately, defense attorneys are not expected to be perfect. Trials happen quickly, and attorneys have to make quick decisions on how to try to fight a case. Sometimes defendants lose trials even when the defense attorney did a good job. Or the defense attorney may have had a good reason for making a decision regarding objections or a line of cross-examination but not obtained the hoped for result. But attorneys may not sit silent while judges threaten witnesses or express opinions on the defendant’s guilt or innocence, and they must use strong exculpatory evidence properly. They cannot just do nothing and hope for the best when effective potential defenses are available. This case recognizes that fact, and so Rogers will receive a new trial.

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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 7/20/23 Zak Goldstein 7/20/23

PA Superior Court: Defendant Must Show Link Between Case and Trial Judge's Subsequent Arrest in Order to Win New Evidence PCRA

Philadelphia Criminal Defense Lawyer Zak T. Goldstein,

The Pennsylvania Superior Court has decided the case of Commonwealth v. Myers, holding that the trial court properly denied the defendant’s PCRA petition because the defendant failed to show that unrelated corruption by the trial judge tainted the conviction in his case. Myers shows the importance of actually linking subsequent misconduct by police and court officials to the defendant’s individual case. Where the defendant can show only that the police or judge did something wrong that was unrelated to the case, the defendant is unlikely to prevail in PCRA litigation.

The Facts of Myers

Myers pleaded guilty to third-degree murder. Pursuant to a negotiated guilty plea, he received a sentence of 20 – 40 years’ incarceration. His co-defendant also pleaded guilty and received a shorter sentence. Two or three years later, the trial judge resigned from the bench because he had been caught stealing drugs from an evidence room in the courthouse. The judge pleaded guilty to related crimes, and the Supreme Court permanently disbarred him.

About seven years later, Myers filed a Post-Conviction Relief Act Petition arguing that he should receive a new trial as a result of the judge’s corruption. Myers invoked the newly discovered evidence exception. Ordinarily, a PCRA petition must be filed within a year of a defendant’s sentence becoming final. There is an exception, however, for when a defendant uncovers new evidence which could not have been discovered prior to trial through the exercise of due diligence and that evidence calls the validity of the conviction in to doubt. In that case, the statute allows the defendant a new one year window in which to file a PCRA petition and seek a new trial based on the new evidence.

Here, the judge resigned from the bench in 2012 and was convicted in 2015. The defendant, however, did not file his PCRA petition until 2022. He claimed that he did not learn of the judge’s corruption until shortly before he filed his petition because he did not have access to many resources while in prison.

The trial court denied the petition. It found that 1) the judge’s conviction had been a matter of public record since at least 2015, so the defendant should have filed a petition within the 60 day deadline for new evidence that applied at the time, 2) the defendant admitted in his petition that he found out about the conviction in March 2021 but did not file the petition within the old 60 day deadline, and 3) the defendant failed to link the judge’s conviction to his own case or show how the judge’s drug theft and issues affected his ability to accept the negotiated guilty plea. The defendant appealed.

The Superior Court’s Decision

The Superior Court affirmed the denial of the PCRA petition. The Court rejected the trial court’s first two reasons but accepted the third. Specifically, the defendant was not required to file anything within 60 days of the conviction becoming public because the public records presumption no longer applies. Recognizing that inmates do not necessarily have access to the news or legal databases, the Supreme Court eliminated the presumption that inmates are aware of public records like court documents in a case called Commonwealth v. Small in 2020. Therefore, the defendant was not expected to know about the judge’s conviction or resignation.

Second, a PCRA based on newly discovered evidence must be filed within a year based on a 2018 amendment that extended the deadline from 60 days to one year. As the trial court denied the petition for not having been filed within 60 days, the Superior Court found that the trial court erred for that reason, as well. The court simply failed to recognize the amendment to the law.

The Superior Court affirmed on the third reason, however. The Court found that the defendant failed to show that anything about the judge’s illegal behavior tainted his own case. The defendant had accepted a negotiated guilty plea, meaning he agreed to plead guilty and that he and the Commonwealth would recommend the same sentence to the judge. The judge accepted that negotiated plea. Thus, even if the judge had significant corruption or personal issues, there was nothing about those issues that would have affected the guilty plea or the defendant’s decision to plead guilty. In other words, the defendant was unable to show that anything about the judge’s behavior actually affected the case.

Finally, although the Court did not apply the old public records presumption, it did express skepticism that the defendant would not have heard about the judge’s behavior for so long. Although the presumption no longer applies, a defendant must be able to plead and prove that they acted with due diligence and could not reasonably have learned of the new evidence sooner. Here, the defendant failed to do so. Therefore, the Court affirmed the denial of the petition.

The Impact of Myers

The Court’s ruling shows the importance of linking a judge or police officer’s misconduct to the defendant’s specific case. In many cases, detectives or police officers get arrested long after a defendant has been found guilty and sentenced. In those cases, the arrest is often not the officer’s first incident of misconduct, and the Commonwealth and/or police may have had information in their files as to other acts of misconduct that should have been disclosed prior to trial. In that case, it may be possible to invoke the newly discovered evidence exception and allege a Brady violation. In other cases, there may not have been anything that the Commonwealth should have disclosed at the time, but the misconduct may have been so similar to something that happened in the defendant’s case that it calls the legitimacy of the defendant’s conviction into question. For example, if a witness claimed that the police coerced them into giving a statement and the officer involved is later disciplined for doing something similar, it may be possible to argue that the behavior is so similar that it should allow for a new trial under the newly discovered evidence exception.

Ultimately, the mere fact of a subsequent arrest or disciplinary action against someone involved in the case does not automatically result in a new trial. When a detective, judge, or prosecutor gets arrested after someone has been convicted, it is critical to understand when the exception applies and when it does not. It is also important to re-investigate the case thoroughly in order to establish any possible links between the misconduct and the defendant’s case.

Facing criminal charges? We can help.

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

Zak Goldstein 6/9/23 Zak Goldstein 6/9/23

Not Guilty: Attorney Goldstein Obtains Acquittal in Aggravated Assault of Child Case

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, recently won a full acquittal in an aggravated assault of a child case. In Commonwealth v. S.B., prosecutors charged S.B. with aggravated assault of a child and endangering the welfare of a child because S.B. was unable to explain injuries that occurred to her three month old baby.

About two years ago, S.B. called 911 after noticing that her nearly three month old baby began to make unusual motions with his arm. An ambulance quickly arrived and took S.B. and the baby to the emergency room. At the emergency room, doctors quickly determined that the baby was suffering from seizures. Further testing determined that the baby was also suffering bilateral brain bleeds and had an injury to his neck. Fortunately, the doctors were able to stabilize the child, and the child began to make a successful recovery. Had the doctors not acted, quickly, however, the baby likely would have died from the brain bleeds.

Hospital personnel questioned S.B. about the cause of the injuries, and S.B. was unable to provide them with any explanation. She asked reasonable questions. For example, she asked whether hugging the baby too hard or leaving the baby in a swing for too long could have caused these issues. After telling S.B. that these injuries could not have been caused by accident, the doctors concluded that someone had committed child abuse. They called the Philadelphia Police Department, and a Special Victims Unit detective began an investigation. The detective interviewed S.B., the child’s father, S.B.’s grandmother, and the medical staff. Additionally, a child protection team doctor wrote a report concluding that the baby had been the victim of child abuse. S.B. was unable to provide any explanation as to what happened, and she told the police and doctors that she was the primary caregiver to the baby. She did mention that she had left the baby alone with the baby’s father on the night before the seizures began, but the police ignored that fact. Instead, they asked to search her phone after she told them that she had been texting with her mother about what could have caused the injuries and googling the various symptoms of shaken baby syndrome and SIDS. Notably, the father did not accompany S.B. and the baby to the hospital.

After the police confirmed that she had in fact conducted these Google searches, the police arrested S.B. Prosecutors promptly charged her with aggravated assault of a child and endangering the welfare of a child. They could not find the baby’s father to obtain an interview for a month, and he had a lengthy history of domestic violence. Nonetheless, they opted only to arrest S.B. Prosecutors maintained at all times that she must have intentionally injured the baby that she had rushed to the hospital.

S.B. quickly found herself facing $500,000 bail and the prospect of a 5-10 year mandatory minimum sentence should she be convicted of aggravated assault. Fortunately, she retained Attorney Goldstein. Attorney Goldstein thoroughly investigated the case and quickly became convinced that law enforcement had made an egregious error in charging S.B. Attorney Goldstein reviewed the discovery, interviewed family members, obtained medical records, and located records which showed the baby’s father’s violent history. Attorney Goldstein then had the case scheduled for trial before a Philadelphia judge.

Through cross-examination of the child protection team doctor, Attorney Goldstein established that the police had evidence of child abuse but no evidence that S.B. committed the abuse. Specifically, S.B. had no prior record, rushed the baby to the hospital as soon as she realized something was seriously wrong, seemed appropriately concerned, asked normal questions, and remained at the hospital until the baby was discharged. She voluntarily spoke with the doctors, nurses, and police detectives, and she provided the detectives with her phone without even requiring the detectives to get a search warrant. She maintained at all times that she did not know what happened, that she was the primary caregiver for the baby, and that she had left the house for about an hour shortly before the symptoms developed.

Attorney Goldstein also cross-examined the detective on his failure to investigate the father’s history of domestic violence and the lack of evidence showing that S.B. had done anything other than rush the baby to the hospital and try to Google the possible causes of symptoms. The Commonwealth objected, arguing that such evidence was not admissible. Anticipating this argument, Attorney Goldstein was prepared with the recent Pennsylvania Supreme Court case law on the issue and successfully convinced the trial judge that the evidence was admissible to show that someone else had committed the crime.

Finally, Attorney Goldstein used S.B.’s text messages to show that there was absolutely no consciousness of guilt on her part - she had googled the symptoms to try to get help, immediately contacted her mother and 911, and acted the same way that a concerned parent who did not in fact cause the injuries would have acted. Attorney Goldstein also presented evidence of S.B.’s good character in the community.

The trial judge immediately found S.B. not guilty of all charges. Instead of facing a mandatory minimum sentence of five to ten years’ incarceration, S.B. will have the charges expunged. Unfortunately, this case highlights the rush to judgment that police and healthcare professionals often engage in anytime a child presents for an appointment or at the emergency room with an injury. Accidents happen, illnesses sometimes present in atypical ways, and even if child abuse has occurred, the police do not always know who committed it. But in cases involving the potential abuse of children, the system is under a lot of pressure to make an arrest. This leads to innocent people like S.B. getting arrested, and this case serves as a cautionary tale as to why you should always consult with a lawyer before speaking with the police. Fortunately, the trial judge acquitted, the baby recovered well from the injuries, and S.B. will be able to return to her life.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Lawyers

Zak Goldstein 5/29/23 Zak Goldstein 5/29/23

PA Superior Court: Concussion May Be Serious Bodily Injury Under Aggravated Assault Statute

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court has decided the case of Commonwealth v. Santiago, holding that a concussion alone may meet the definition of serious bodily injury as required for an aggravated assault conviction. The defendant had been convicted of aggravated assault and appealed the conviction. He argued that a concussion alone did not amount to serious bodily injury. The Superior Court, however, disagreed. Medical testimony introduced at trial established that a concussion impairs the brain for a protracted period and could be indefinite in extreme circumstances. Therefore, the court affirmed the conviction.

The Facts of Commonwealth v. Santiago

In July 2019, police responded to a noise complaint. When officers arrived on the scene, they discovered an impromptu block party. Various partygoers insulted and threatened the officers, and the officers eventually decided to arrest one of them. That person fled, and the officers chased him to his apartment building.

Other people at the apartment building tried to help the defendant. Someone knocked an officer to the ground. When the officer stood back up and called for help, the defendant punched the officer in the face. The officer fell backwards down four steps and hit his head on the metal leg of a picnic table. He became disoriented and nearly lost consciousness. There was also some bleeding.

The officer was diagnosed with a concussion at the hospital and missed two weeks of work. He continued to suffer from migraines, visual impairment, and confusion for about a month. The Commonwealth charged the defendant with aggravated assault and related charges. A jury convicted him, and the trial court sentenced the defendant to an aggregate of seven to fourteen years’ incarceration. The defendant filed a timely appeal, raising the issue that one punch resulting in a minor concussion is insufficient to support a conviction for aggravated assault.

The Superior Court Appeal

The defendant appealed, arguing that punching an officer one time and causing only a minor concussion from which the officer recovered was not an aggravated assault as a felony of the first degree. First degree felony aggravated assault requires that a defendant either specifically attempt to cause serious bodily injury and fail to do so or that a defendant intentionally, knowingly, or recklessly under circumstances manifesting an extreme disregard to the value of human life actually cause serious bodily injury. Therefore, the issue in this case was whether the defendant actually caused serious bodily injury.

The defendant argued that the concussion in this case was not a serious bodily injury. Serious bodily injury is either, 1) harm creating a substantial risk of death, 2) harm creating serious, permanent disfigurement, or (3) harm causing protracted loss or impairment of a bodily member or organ. Here, the court found that the concussion fell within the third category. The officer’s treating physician testified that the concussion altered brain function and caused an impairment to brain function that could be protracted. In extreme cases, the potential effects of a concussion can be indefinite. Therefore, concussing someone during an assault may be sufficient to be deemed serious bodily injury and rise to the level of aggravated assault.

This case makes it easier for the Commonwealth to obtain a conviction for aggravated assault. Concussions obviously occur with some regularity, and most people recover without any major issues. Therefore, a concussion probably should not equate to serious bodily injury. But here, likely because the case involved a police officer as the victim, the court upheld the conviction and found that a concussion may be serious bodily injury even where the victim recovers quickly.