Identity Theft Charges in Pennsylvania

We have just written an update on Pennsylvania's Identity Theft Statute. Identity Theft can be a serious charge due to the large amounts of restitution that are often involved and the fact that it may be charged as a felony offense. Fortunately, there are often defenses to this white collar crime. Click here to learn more about Identity Theft charges in Pennsylvania. 

After-Discovered Evidence Motion | PCRAs and Appeals

Can I use new evidence to overturn a criminal conviction?

If the defense learns of new evidence after the defendant has been convicted but while the defendant is still serving a sentence, it may be possible to obtain a new trial by filing a post-sentence motion or PCRA Petition. For example, if new witnesses come forward or relevant video footage is uncovered, it may be possible to use that evidence to obtain a new trial. In general, Pennsylvania law provides a number of different ways to attack a criminal conviction or guilty plea. The normal appeals process involves filing post-sentence motions and if they are denied, an appeal to the Pennsylvania Superior Court. If that is not successful, the defendant may be able to challenge a conviction by filing a Post-Conviction Relief Act Petition.

After-Discovered Evidence Motions

Philadelphia Criminal Appeals Lawyer Demetra Mehta, Esq.

In addition to the normal appeals and PCRA process, there are also special motions which may be filed when the defense learns of new evidence or witnesses which would have made a difference and possibly led to a different outcome at trial. There are two types of after-discovered evidence motions, and the standard which must be met differs slightly depending on whether the case is still on appeal or whether the direct appeals have been exhausted.

Post-Sentence Motion for a New Trial

First, if the defendant has been found guilty but the case is still in the trial court for sentencing or post-sentence motions or it is still in the Superior Court for a direct appeal, the defense attorney must file a post-sentence motion with the court promptly upon the discovery of the new evidence. In order to obtain a hearing, the defendant must plead four things under Pennsylvania Rule of Criminal Procedure 720:

1. That the evidence was not available at trial to the defense despite the exercise of due diligence. This means that the defense must have taken reasonable steps to investigate the case and find the evidence. If the defense attorney did not conduct any investigation of any kind and should have interviewed a helpful witness who was mentioned in the discovery, then the motion will fail this prong.
   

2. The evidence is not cumulative. This means that if the defense already presented four alibi witnesses and would have presented a fifth alibi witness to testify to the same thing, the defense may fail this prong because the evidence would have been cumulative.
   

3. The evidence may not be used solely for impeachment. Thus, the fact that the defendant learns that a witness had a conviction for crimen falsi would likely not warrant a new trial. Instead, the evidence must be substantive – meaning a new witness who would testify to an alibi, or a new scientific method for testing DNA or fingerprints and corresponding results that would show that the defendant could not have committed the crime.
   

4. That the evidence would have resulted in a different verdict. This is often the hardest prong as witnesses who wait years to come forward may have credibility problems, and ultimately, the trial judge must rule on whether the witness would have made a difference at trial.

If the defense is able to plead all four of these things relating to the new evidence or new witness, then the trial court should hold a hearing on the after-discovered evidence motion, make findings of fact, and determine whether the defendant should receive a new trial. At the evidentiary hearing, the Court will typically hear testimony from the new witness or view the new evidence and also hear from the defense attorneys and possibly the defendant as to what steps were taken to locate the new evidence prior to trial.

After the Court holds an evidentiary hearing, the Court will then rule on each of these four factors. If the Court denies the motion, it may be appealed. However, the trial court has a great deal of discretion in evaluating these motions as the trial judge will view the testimony from the new witness and make a determination as to whether the witness is credible and would have made a difference, and these findings are difficult to overturn on appeal. Finally, it is important to note that an after-discovered evidence motion must be filed promptly.

Post-Conviction Relief Act Petitions (“PCRAs”) Based On New Evidence

Criminal Lawyer Zak T. Goldstein, Esq.

If direct appeals have been exhausted and the defendant is still serving a sentence, the defendant may file a Post-Conviction Relief Act petition seeking a new trial based on new evidence. Ordinarily, a PCRA Petition must be filed within one year from the date of sentencing (or the date on which the appellate courts uphold the conviction if appeals were taken). However, there is an after-discovered evidence to the one-year time limit which allows a defendant to file a new PCRA Petition based on after-discovered evidence within sixty days of learning of the evidence even if the Petition is filed more than one year from the date on which the sentence became final.

A PCRA Petition based on after-discovered evidence is very similar to the aforementioned Post-Sentence Motion. However, it differs slightly in that it must be filed within sixty days if the defendant is outside of the one year deadline for a PCRA. It also requires the defendant to show he or she did not know the fact(s) upon which he or she based her petition; and (2) they could not have learned those fact(s) earlier by the exercise of due diligence.

Ineffective Assistance of Counsel

The defendant could also take two different approaches in filing the PCRA. First, the defendant could attempt to meet the same standards as explained above and try to show that although the investigation was reasonably diligent, the evidence could not be uncovered. Alternatively, the defendant could attempt to introduce the new evidence through a PCRA challenge based on ineffectiveness of counsel by arguing that the defense attorney was ineffective and should have uncovered the evidence but did not adequately investigate the case. For example, if there was an alibi witness that was known to the defense in a Robbery case, but the defense took no steps to locate that person, then the PCRA Petition could allege that trial counsel provided ineffective assistance of counsel. However, this may not satisfy the previously mentioned sixty day extension because the defendant likely knew about the alibi witness. Whether the extension would apply depends on the facts of the individual case, making it important to consult with an attorney if you believe that new evidence could make a difference for you.

Commonwealth v. Shiloh

The recent case of Commonwealth v. Shiloh provides an example of after-discovered evidence in the PCRA context. In Shiloh, the defendant was convicted of selling drugs in part based on the testimony of a co-defendant, her sister. Specifically, she was convicted of multiple counts of delivery of a controlled substance, criminal use of a communication facility, conspiracy, and endangering the welfare of children, in connection with her participation in a drug operation. Her sister testified against her at trial, she was convicted, and she received 14-30 years of incarceration at sentencing.

Ms. Shiloh exhausted of all of her appeals and ordinary PCRAs, and she eventually filed a PCRA outside of the one year deadline for filing a PCRA. In the new PCRA, she alleged that her sister, who had testified against her, had prepared an affidavit admitting that she had received benefits from the prosecution in exchange for her testimony. Her sister also admitted to lying about receiving this consideration from the prosecution at trial. Shiloh included the notes of testimony from her sister’s sentencing in which the Commonwealth confirmed the existence of the agreement and asked for a reduced sentence due to the cooperation.

The trial court dismissed the PCRA Petition as untimely, and Shiloh appealed to the Superior Court. On appeal, Shiloh argued that the new evidence would constitute after-discovered evidence and that she could not have learned of it prior to trial. Whether or not Shiloh was entitled to the benefit of the previously discussed sixty day time limit for filing an after-discovered evidence PCRA came down to whether the “public record presumption” applied to her. As a general rule, PCRA Petitioners who are not in custody are expected to exercise due diligence in investigating their cases, meaning that if there are facts contained in public records such as the guilty plea colloquy of a co-defendant, then the facts will not constitute after-discovered evidence.

The public record presumption, however, does not apply to an incarcerated, pro se petitioner. The petitioner must still show that they exercised due diligence in conducting an investigation, but the presumption will not apply because pro se prisoners do not have access to the same resources and records as someone who is represented by counsel or someone who is not incarcerated. Because Shiloh was in custody for the duration of her appeals and PCRAs, the Superior Court reversed the finding of the trial court that she should have known about the guilty plea colloquy sooner and remanded the case to the trial court for an evidentiary hearing on when exactly Shiloh discovered or should have learned that her sister had cooperated against her and received benefits for so doing.

On remand, if Shiloh can show that she had no way of knowing about the cooperation and that the cooperation would have made a difference at trial, then she could be entitled to a new trial. Thus, after-discovered evidence motions can be extremely important because they could lead to the defendant receiving a new trial. 

Award-Winning Philadelphia Criminal Defense Attorneys  

Philadelphia Criminal Defense Attorneys Zak T. Goldstein, Esq. and Demetra Mehta, Esq.

if you are facing criminal charges or considering an appeal, we can help. Our award-winning Philadelphia criminal defense lawyers have won countless pre-trial motions, bench trials, and jury trials, and we have also successfully resolved many cases through negotiations which resulted in excellent outcomes for our clients. We can also help you evaluate the likelihood of success in filing a PCRA Petition or direct appeal to the Superior Court. We offer a 15-minute criminal defense strategy session to any potential client, so call 267-225-2545 to speak with one of our experienced and understanding defense attorneys today. 

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PA Superior Court: Police May Destroy Buy Money Used In Confidential Informant Drug Case

Commonwealth v. Ribot

The Pennsylvania Superior Court has just held that police may testify to the use of pre-recorded buy money in confidential informant drug cases even where the police returned the money to general circulation after it was recovered, thereby losing it. In the case of Commonwealth v. Ribot, the Superior Court overturned the Philadelphia trial court’s order granting a defense motion in limine. The trial court's order precluded a police witness from testifying about the use and recovery of pre-recorded buy money in a drug case where police did not put the money, which had allegedly been used by a confidential informant to purchase drugs, into evidence after recovering it.

Confidential Informants and Pre-Recorded Buy Money

In Ribot, Philadelphia Police narcotics officers arranged for a confidential informant to purchase heroin from the defendant. In these types of cases, the police officers will usually take some steps to record the serial numbers of the bills used to buy the drugs prior to having the CI make a purchase of narcotics. This way, when police arrest a suspect or execute a search warrant, they will have a stronger case of Possession with the Intent to Deliver against the person who is found in possession of the previously recorded buy money because the officers will testify that that person must have obtained the money from the Confidential Informant in exchange for drugs. Here, the officers entered the serial numbers of the bills into a computer database prior to giving the bill to the confidential informant. An officer then printed out a time stamped copy of the computer entry and circled the serial number of the bill which was to be used in that day’s narcotics surveillance.

After “recording” the serial number of the bill in this manner, the police officer transported the CI to the street and sent the CI to buy heroin. The CI allegedly used the buy money to purchase heroin from the defendant, and the CI turned that heroin over to the police. The police then arrested the defendant and recovered the pre-recorded buy money. Instead of putting it on a property receipt and preserving it for trial, the police then put it back into circulation to use in future investigations.

Possession with the Intent to Deliver Charges

After being arrested and charged with Possession with the Intent to Deliver (“PWID”) of heroin, the defendant made a motion in limine to exclude any mention of the buy money at trial under the Best Evidence Rule and as a discovery sanction for the Commonwealth’s failure to preserve evidence. The Philadelphia trial court held a hearing, and the officer testified that it was normal police procedure for the police to get rid of the money and use it in other investigations. Of course, the defense attorney impeached the officer with police directives which require that the money be preserved for trial.

The Best Evidence Rule and Pre-Recorded Buy Money

The trial court granted the motion in limine and precluded the Commonwealth from eliciting any testimony about the exchange of money. The prosecution appealed to the Superior Court, and the Superior Court reversed. First, the Superior Court held that mentioning the use of the money and the way in which it was recorded did not violate the Best Evidence Rule despite the fact that introducing the money itself would have been the best evidence. Under the Pennsylvania Rules of Evidence, “[a]n original writing, recording, or photograph is required in order to prove its content unless these rules, other rules prescribed by the Supreme Court, or a statute provides otherwise.” This means that in a contract dispute, the parties may not try to prove the contents of the contract through oral testimony. Instead, the party seeking to offer evidence of a contract must introduce the actual contract into evidence.

Obviously, the money itself would be the best evidence of the fact that the money was used in the investigation. However, there are limits to the Best Evidence Rule in that it only applies when the contents of the document are necessary to prove the case or an element of the offense or defense. Thus, Rule 1002, the Best Evidence Rule, requires that an original writing, recording, or photograph be introduced at trial only if the proponent must prove the contents of the writing, recording, or photograph to prove the elements of its case.

Here, the actual serial number of the buy money was not essential for the Commonwealth to prove the elements of the case. Instead, the charges required the prosecution to show that the defendant sold drugs to the Confidential Informant, not that the bills had a certain serial number on them. The Court held that although police may not have followed the best procedures when they failed to preserve the evidence, the Best Evidence Rule does not prevent them from testifying about the money's existence and use. The Court also noted that its ruling would not leave the defendant without a remedy. At trial, the defendant would have ample opportunity to cross examine the police officer as to what happened to the money and suggest that the money was not actually recovered.

The Court noted:

“While evidence of the officer’s entry of the bill’s serial number into the computer may be less strong than either of those alternatives, that means only that such evidence is more vulnerable to attack, not that it is inadmissible. At trial, Ribot’s counsel would have ample opportunity to cross-examine [the officer] about the buy money and his method of pre-recording its serial number.”

In some cases, it may also be possible to request a missing evidence jury instruction, and jury instructions can be very important. 

Finally, the Superior Court concluded that the Commonwealth should not face discovery sanctions for destroying evidence because the Commonwealth never actually possessed the buy money. This analysis obviously creates a line between the prosecution and the police which does not really exist, and many other cases have held that the contents of the police file can be attributed to the prosecutor. Nonetheless, the Superior Court reversed the trial court’s order and remanded the case to the Court of Common Pleas for trial on the drug charges.

Philadelphia Criminal Defense Lawyers for Drug Charges

Philadelphia Criminal Defense Attorneys Zak T. Goldstein, Esq. and Demetra Mehta, Esq.

If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have won countless pre-trial motions, bench trials, and jury trials. Our defense attorneys have also successfully resolved many cases through negotiations which resulted in excellent outcomes for our clients. We offer a 15-minute criminal defense strategy session to any potential client, so call 267-225-2545 to speak with one of our experienced and understanding defense attorneys today. 

Withdrawing a Guilty Plea in Pennsylvania

I pleaded guilty, and I think it was a mistake. Can I withdraw a guilty plea? 

Yes, in some cases it is possible to withdraw a guilty plea and go to trial. However, there are strict time limits for when motions to withdraw guilty pleas must be filed, and the motions are often difficult to win. If you recently pleaded guilty and feel that you may have made a mistake, you should contact one of our defense attorneys at 267-225-2545 immediately to discuss the merits of withdrawing your plea and the likelihood of success. If you wait too long, you could waive the right to challenge your plea forever. 

How do I withdraw a guilty plea?

There are three ways that a guilty plea could be withdrawn. First, if the sentencing has not yet occurred, then the defendant may file a written pre-sentence motion to withdraw the guilty plea. Second, if the sentencing has already occurred, then the defendant has ten days from the date of sentencing to file a post-sentence motion asking the court to permit the defendant to withdraw the guilty plea. Finally, in rare cases, it may be possible to ask the judge for a new trial even after a guilty plea by filing a Post-Conviction Relief Act Petition. A PCRA Petition must be filed within one year from when the sentence became final. A sentence becomes final on the day of sentencing unless there is an appeal. Post-sentence motions and PCRA Petitions challenging guilty pleas are difficult to win. 

Does the judge have to let me withdraw the plea? 

Demetra Mehta, Esq. - Criminal Appeals Attorney

The judge is never required to allow a defendant to withdraw a plea. Instead, the judge must evaluate the allegations in the written motion and determine whether the interests of justice require that the defendant be allowed to withdraw a plea and proceed to trial. The exact standard which a judge will apply depends on the procedural posture of the case. Pre-sentence guilty pleas are typically easier to undo than a post-sentence guilty plea. 

As a general rule, pre-sentence guilty pleas are the easiest to undo and motions to withdraw them are often granted. However, the right to withdraw a plea pre-sentencing is not absolute. in Commonweatlh v. Carrasquillo, the Pennsylvania Supreme Court re-affirmed that the trial court is imbued with the discretion to deny a defendant permission to withdraw a guilty plea, whether that request is tendered before or after sentencing. The Supreme Court suggested that a pre-sentence motion should typically be granted, but it reiterated that there is no absolute right to withdraw a guilty plea. Instead, trial courts have discretion in determining whether a withdrawal request will be granted; such discretion is to be administered liberally in favor of the accused; and any demonstration by a defendant of a fair-and-just reason will suffice to support a grant, unless withdrawal would work substantial prejudice to the Commonwealth.

Prior to Carrasquillo, a defendant was entitled to pre-sentence withdrawal of a guilty plea simply upon a bare assertion of innocence. Now, a defendant may be required to demonstrate that the claim of innocence is plausible in order for it to be a fair and just reason for withdrawal of a plea. Thus, in the recent Superior Court case of Commonwealth v. Baez, the Pennsylvania Superior Court upheld the trial court's denial of a pre-sentence motion to withdraw a guilty plea where the defendant had picked a jury, heard from a number of witnesses, and then decided to plead guilty to various sexual offenses pursuant to negotiations with the prosecution. The Baez court concluded that the Commonwealth would suffer prejudice because child witnesses had already been required to testify and that the defendant had not provided a plausible claim of innocence.  

Zak T. Goldstein, Esq. - Philadelphia Criminal Appeals Lawyer

Pre-sentence motions are no longer guaranteed, but they are often granted. Post-sentence motions, however, are much more difficult to win. Nonetheless, they may still be granted in some cases. Post-sentence motions for withdrawal are subject to higher scrutiny because courts strive to discourage entry of guilty pleas as sentence-testing devices. Instead, a defendant must demonstrate that manifest injustice would result if the court were to deny his post-sentence motion to withdraw a guilty plea. This is a harder claim to prove, and it will typically require more than simply asserting the defendant's innocence. Instead, the defense would likely be required to show a compelling case for innocence or that some new evidence or witnesses have come forward since the plea. The post-sentence motion to withdraw a guilty plea must be filed within ten days of the sentence. 

Finally, in rare cases, it may be possible to attack a conviction through the Post-Conviction Relief Act Petition by filing a PCRA Petition within one year of sentencing or the conclusion of direct appeals, whichever is later. If the defendant can show that the plea was the result of ineffectiveness of counsel, that after-discovered, exculpatory evidence would have changed the defendant's mind about pleading guilty, or some change in constitutional law that would have provided a defense, it may be possible to challenge a guilty plea by filing a PCRA. Again, the time limits are strict, and if motions are not filed on time, then the right to attack the conviction could be lost forever. 

What happens if I am allowed to withdraw the guilty plea?

If the judge grants the motion to withdraw the plea, then your case will proceed as if the plea was never entered. This means that the parties are free to continue plea negotiations in the hopes of reaching a better deal. The parties may also litigate motions like pre-trial motions to suppress and then proceed to trial. Most importantly, the fact that the defendant pleaded guilty at one point during the case and was permitted to withdraw the plea is not admissible against the defendant at trial. The Rules of Evidence specifically prohibit introducing evidence relating to plea negotiations and in-court plea proceedings. This means that the fact that there was at one point a guilty plea cannot be used against the defendant to show guilt. 

Philadelphia Criminal Defense Lawyers for Post-Sentence Motions, Criminal Appeals, and Post-Conviction Relief Act Petitions

Goldstein Mehta LLC - Philadelphia Criminal Defense Attorneys

If you recently pleaded guilty and believe that you made a mistake, we may be able to help. We have successfully helped clients reverse convictions and pleas through the use of post-sentence motions, appeals, and Post-Conviction Relief Act Petitions. It is important to remember that strict deadlines apply when attempting to undo a guilty plea. We offer a free criminal defense strategy session with one of our experienced and understanding defense attorneys to every potential client. Call 267-225-2545 to speak with an award-winning Philadelphia Criminal Defense Lawyer today.