Philadelphia Criminal Defense Blog

Zak Goldstein 3/25/18 Zak Goldstein 3/25/18

PA Superior Court: It Is Always Ineffective Assistance of Counsel to Go to Trial Without an Interpreter for a Client Who Doesn’t Speak English

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Diaz. The Court found that it is always ineffective assistance of counsel where a defense attorney fails to object to the court proceeding to trial without an interpreter for a defendant who does not speak English. The Court reversed the decision of the trial court, which had denied the defendant’s Post-Conviction Relief Act Petition, and awarded the defendant a new trial.

In Diaz, Bucks County prosecutors charged the defendant with Rape of a Child, Rape of a Person Less Than 13 Years of Age, Statutory Sexual Assault, Corruption of Minors, Endangering the Welfare of a Child, and Criminal Conspiracy. Prosecutors alleged that the defendant molested his step-daughter for four years. Prosecutors further alleged that the girl’s mother knew of the molestation and cooperated with it.

The defendant retained two private attorneys, and the representation lasted for approximately eight months. During that period, the attorneys appear to have done nothing. One of them met with the defendant for less than an hour, and the other attorney never met with him at all. The defense attorneys apparently assumed that the other attorney was working on the case and handling the trial preparation, but in fact, no one was working on it.

On the day of trial, the attorney who had never met with the defendant finally met with him fifteen minutes before the trial court called the case. That attorney was surprised to realize that his client did not really speak or understand English. The attorney informed the Court that he would need an interpreter, but there was no interpreter available that day. This was likely because the attorneys had not notified the court in advance that an interpreter would be needed. The attorney, likely not wanting to show how unprepared he was, then told the judge that the defendant would only need the interpreter for when he actually testified and that they could start the trial without the interpreter. The trial judge initially said that the court would only proceed through jury selection without the interpreter, but ultimately, the court began receiving testimony that day.

The defendant received the services of an interpreter for the rest of the trial. The jury ultimately convicted him of all charges. When the defendant returned to court for sentencing and a hearing on whether he should be designated a Sexually Violent Predator, the trial court noted that the defendant had an interpreter present because he did not understand the proceedings well enough to participate in them without an interpreter. He received a sentence of 20-40 years in state prison.

The defendant appealed to the Superior Court on the grounds that he had not received the interpreter on the first day of the trial. The Superior Court denied the appeal. It found that because the attorney failed to object to proceeding to trial without an interpreter, the defendant had waived the claim and could not raise it on appeal.

Post-Conviction Relief Act Petition

The defendant next filed a Post-Conviciton Relief Act Petition (“PCRA”). In the PCRA Petition, the defendant raised a number of claims relating to ineffective assistance of counsel. In addition to other errors, the defendant alleged that he received the ineffective assistance of counsel in that his attorneys failed to object when the court began the trial without an interpreter present. The PCRA court conducted an evidentiary hearing and ultimately agreed with the defendant. It reversed his conviction and awarded him a new trial. The Commonwealth appealed.

Appealing the Denial of a PCRA Petition

On appeal, the Superior Court affirmed the PCRA’s court decision awarding the defendant a new trial. There was some dispute as to exactly how much English the defendant could understand, but the Superior Court ultimately found that there was enough evidence on the record for the PCRA court to properly find that the defendant could not speak sufficient English to proceed to trial without an interpreter. Further, the Court noted that it must apply a very deferential standard of review to the appeal of a PCRA. The Court recognized that it may not make its own findings of fact Instead, the Superior Court must defer to the trial court’s findings unless the trial court abused its discretion by making findings with no support in the evidentiary record.

In general, a PCRA Petitioner must show three things in order to win a new trial or sentencing: 1) counsel was ineffective, 2) there was no reasonably strategic basis for counsel’s decision, and 3) the petitioner suffered prejudice as a result of counsel’s ineffective representation. Prejudice is often difficult to show. The defendant must be able to show that had he received effective representation, the outcome may have been different. Thus, even in many cases where a petitioner can show that the attorney did something horribly ineffective, the trial courts and appellate courts will not award a new trial because the courts will find that the defendant would have been convicted anyway.

Presumed Prejudice in PCRA Litigation

There are a handful of situations in which the error is so fundamental that prejudice is presumed and a petitioner does not have to show that the outcome would have been different. In these cases, the petitioner must show only that the attorney was ineffective and that there was no reasonable, strategic basis for the decision or omission. This makes the burden of winning a new trial or sentencing much easier to meet. This is because there are some “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a parituclar case is unjustified.”

For example, prejudice is presumed when there is an actual or constructive denial of counsel, the state interferes with counsel’s assistance, or counsel had an actual conflict of interest. In addition, prejudice is presumed where trial counsel’s ineffectiveness causes a defendant to be physically absent from his own trial without cause or consent. In Commonwealth v. Tolbert, the Superior Court reversed a conviction where trial counsel admittedly and erroneously told the defendant he did not have to be present for a court date and the court then proceeded through jury selection without the defendant.

The Superior Court relied heavily on the Tolbert case in finding that a defendant who cannot understand the proceedings due a language barrier is essentially not present at his own or her own trial. The defendant’s ability to use an interpreter encompasses numerous fundamental rights. The Court noted that the failure to understand the proceedings may deny him his right to confront witnesses, his right to consult with his attorney, or his right to really be present at his own trial. Accordingly, because the defendant could not understand the first day of proceedings, the defendant was essentially not present for his trial. Therefore, prejudice could be presumed from the defense attorney’s failure to object. The Superior Court reversed the conviction and awarded the defendant a new trial.

This may seem like the obvious answer – that a defendant has the right to an interpreter and to understand what is happening in court, but the impact of awarding a new trial in a case like this is significant. These types of sexual assault trials are lengthy, expensive, and very emotionally difficult for everyone involved. The complainant and other witnesses must testify again, the defendant must face trial and sentencing again, and the odds of winning for the prosecution likely go down as time goes by, memories fade, and witnesses become unavailable. Therefore, the appellate courts will often do anything they can to affirm convictions in these cases. This particular case was decided by a three-judge panel of the Superior Court. Although two judges voted in favor of the defendant receiving a new trial, one of the judges wrote a 46-page dissent arguing that the defendant should have to show actual prejudice under these circumstances. Fortunately, the majority judges were not convinced by the dissent. It is now clear that a court may not proceed to trial without providing a non-English speaking defendant with an interpreter.

Facing Criminal Charges or Appealing a Conviction? Our Philadelphia Criminal Defense Lawyers Can Help.

If you are facing criminal charges, are under investigation, or are considering an appeal of a criminal conviction, we can help. Our Philadelphia criminal defense lawyers have successfully represented clients in PCRA Petitions and direct appeals to the Superior Court. We offer a free, 15-minute criminal defense strategy session to anyone who is considering appealing a wrongful conviction or filing a Post-Conviction Relief Act Petition. Call 267-225-2545 to speak with one of our award-winning defense attorneys today.

Zak Goldstein 3/23/18 Zak Goldstein 3/23/18

PA Supreme Court Sharpens Teeth of Speedy Trial Rule

The Right to a Speedy Trial in Pennsylvania Under Rule 600

Philadelphia Criminal Defense Attorney Zak Goldstein

If you are facing criminal charges in Pennsylvania, the Rules of Criminal Procedure give you the right to a speedy trial. As a general matter, Pennsylvania Rule of Criminal Procedure requires the prosecution to bring every criminal defendant to trial within a year of filing the complaint. If the prosecution fails to do so, then the defense attorney may file a motion to dismiss the case with prejudice pursuant to Rule 600(A).

As with most rules, there are a number of exceptions. The majority of the exceptions apply when the prosecution has not done anything to cause the continuance. For example, if the defense attorney requests a continuance for scheduling issues or further investigation or the defendant fails to appear for court, then the time in between court dates would not count towards the 365 day deadline for bringing the defendant to trial. The rule also gives judges permission to exclude time where the prosecution acted with "due diligence." This means if a case was continued because it was not really the prosecutor's fault, the judge may decide to exclude the time.

In recent years, Pennsylvania courts had begun to disregard Rule 600 and find virtually any period of time in between court dates to be excludable or extendable time. Courts would also routinely exclude court continuances from the calculation of the 365 day time period, meaning that if a jury trial was continued because the judge was hearing a different case, that time would often not count against the prosecution. Even cases which were continued because the prosecution failed to turn over discovery in advance could result in a continuance being marked as excludable time if the prosecution showed that it made efforts to obtain the discovery in a timely manner.

Commonwealth v. Mills

All of that has begun to change with a recent opinion of the Pennsylvania Supreme Court. In the case of Commonwealth v. Mills, the Pennsylvania Supreme Court significantly strengthened the speedy trial protections afforded to a criminal defendant under the Pennsylvania Rules of Criminal Procedure. The Pennsylvania Rules require prosecutors to bring a criminal defendant to trial within 365 days of the filing of the criminal complaint. In theory, if the prosecution fails to bring the defendant to trial within that time period, the entire case should be dismissed. Unfortunately, in 2012, the Rules of Criminal Procedure were amended to exclude significant portions of time from the calculation of when the 365 day period expires. However, the PA Supreme Court has now limited the effect of that amendment.

Under the 2012 addition to the rules, "periods of delay at any stage of the proceedings caused by the Commonwealth when the Commonwealth has failed to exercise due diligence shall be included in the computation of the time within which trial must commence. Any other periods of delay shall be excluded from the computation." In subsequent appellate court opinions interpreting the addition, many courts took the position that any time that was not directly the prosecution's fault would not count for Rule 600 purposes. For example, many judges began to rule that the delays due to scheduling backlogs in the courts could not be held against the Commonwealth. These decisions rendered Rule 600 essentially toothless as courts began to find the Commonwealth responsible only for continuances due to blatant negligence.

The Facts of the Case

Now, in the case of Commonwealth v. Mills, the Pennsylvania Supreme Court has dramatically re-interpreted the amendment to Rule 600 such that the ordinary periods of time between court dates should again count for speedy trial purposes. In Mills, the defendant was charged with Attempted Murder and related charges by Complaint on June 6, 2011. The case eventually proceeded to a scheduling conference in September, and it was listed for trial on April 2, 2012. Shortly before the trial date, the Commonwealth requested a continuance because 1) discovery was incomplete, 2) the Commonwealth had decided to seek DNA testing, and 3) the specially assigned prosecutor had scheduled a vacation. The trial court continued the case until September 20, 2012, which was well past the 365 day deadline of Rule 600.

When the date for trial arrived, the defense filed a written Rule 600 Motion to Dismiss as required by the rule. The defense conceded that certain periods of time which had been attributable to defense continuance requests should not count for Rule 600 purposes, but the parties disagreed as to whether 174 days of time between the filing of the complaint and the status conference in which the prosecution requested the continuance of the trial should count. The trial court found that the time counted and dismissed the case.

The Appeal

Although appellate courts are supposed to review a trial judge's decision on a speedy trial motion according to a demential, abuse of discretion standard, the Superior Court initially reversed the trial court's ruling and re-instated the prosecution. The defendant then appealed to the Pennsylvania Supreme Court. The Supreme Court reversed the Superior Court and dismissed the case. The Court's analysis focused on the meaning of the word "delay" as used in the statute. The Court agreed with the defendant that delay, as used in the rule, does not include the time attributable to the normal progression of a case. Instead, that time may count even if the Commonwealth has been diligent, and judges must use their discretion in distinguishing between delay attributable to the court and delay which should be allocated to a party.

Under the ruling, trial courts may still exclude certain periods of time which are due solely to the court's scheduling issues. Where the prosecution is ready for trial but must wait due to a court calendar, the time may be considered "delay" for which the Commonwealth is not accountable. However, the Commonwealth could not argue in this case that it had been prepared for trial at the first listing. The Commonwealth was forced to concede that it requested a continuance due to missing discovery, the failure to obtain prompt DNA testing, and vacation schedules. Therefore, the Supreme Court concluded that the time between court dates could not be considered delay attributable to the court. The Court dismissed the case.

After decades of appellate opinions weakening the protections of Rule 600, Mills shows a willingness on the Court's behalf to finally enforce the rule. Under Mills, the time leading up to trial may now count against the Commonwealth where the Commonwealth is not ready for trial at the first listing. The Court has now added some real teeth to the rule, and it has done so even in this case where the charges were as serious as Attempted Murder. As a general rule, endless delay before trial can harm both the prosecution and the defense. The Commonwealth's case may fall apart as witnesses' memories become fuzzy, police officers retire, and evidence is lost, and defendants may spend significant periods of time in jail awaiting trial despite being presumed innocent. Defendants may also run into the same problems with defense witnesses, particularly in cases involving an alibi defense. Rule 600 should now provide the prosecution and the trial courts with a real incentive to bring a criminal defendant to trial within the one year requirement of the rule.

Philadelphia Criminal Defense Lawyers for Rule 600 Motions

If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully represented thousands of clients. We have won serious cases on pre-trial motions such as Rule 600 Motions to Dismiss and have also obtained full acquittals at trial. We offer a free criminal defense strategy session to anyone who may be under investigation or facing charges. Call 267-225-2545 to speak with one of our defense attorneys.

Pennsylvania Rule of Criminal Procedure 600

Rule 600. Prompt Trial.

(A) COMMENCEMENT OF TRIAL; TIME FOR TRIAL

(1) For the purpose of this rule, trial shall be deemed to commence on the date the trial judge calls the case to trial, or the defendant tenders a plea of guilty or nolo contendere.

(2) Trial shall commence within the following time periods.

(a) Trial in a court case in which a written complaint is filed against the defendant shall commence within 365 days from the date on which the complaint is filed.

(b) Trial in a court case that is transferred from the juvenile court to the trial or criminal division shall commence within 365 days from the date on which the transfer order is filed.

(c) When a trial court has ordered that a defendant’s participation in the ARD program be terminated pursuant to Rule 318, trial shall commence within 365 days from the date on which the termination order is filed.

(d) When a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within 365 days from the date on which the trial court’s order is filed.

(e) When an appellate court has remanded a case to the trial court, the new trial shall commence within 365 days from the date of the written notice from the appellate court to the parties that the record was remanded.

(B) PRETRIAL INCARCERATION

Except in cases in which the defendant is not entitled to release on bail as provided by law, no defendant shall be held in pretrial incarceration in excess of

(1) 180 days from the date on which the complaint is filed; or

(2) 180 days from the date on which the order is filed transferring a court case from the juvenile court to the trial or criminal division; or

(3) 180 days from the date on which the order is filed terminating a defendant’s participation in the ARD program pursuant to Rule 318; or

(4) 120 days from the date on which the order of the trial court is filed granting a new trial when no appeal has been perfected; or

(5) 120 days from the date of the written notice from the appellate court to the parties that the record was remanded.

(1) For purposes of paragraph (A), periods of delay at any stage of the proceedings caused by the Commonwealth when the Commonwealth has failed to exercise due diligence shall be included in the computation of the time within which trial must commence. Any other periods of delay shall be excluded from the computation.

(2) For purposes of paragraph (B), only periods of delay caused by the defendant shall be excluded from the computation of the length of time of any pretrial incarceration. Any other periods of delay shall be included in the computation.

(3)(a) When a judge or issuing authority grants or denies a continuance:

(i) the issuing authority shall record the identity of the party requesting the continuance and the reasons for granting or denying the continuance; and

(ii) the judge shall record the identity of the party requesting the continuance and the reasons for granting or denying the continuance. The judge also shall record to which party the period of delay caused by the continuance shall be attributed, and whether the time will be included in or excluded from the computation of the time within which trial must commence in accordance with this rule.

(b) The determination of the judge or issuing authority is subject to review as provided in paragraph (D)(3).

(D) REMEDIES

(1) When a defendant has not been brought to trial within the time periods set forth in paragraph (A), at any time before trial, the defendant’s attorney, or the defendant if unrepresented, may file a written motion requesting that the charges be dismissed with prejudice on the ground that this rule has been violated. A copy of the motion shall be served on the attorney for the Commonwealth concurrently with filing. The judge shall conduct a hearing on the motion.

(2) Except in cases in which the defendant is not entitled to release on bail as provided by law, when a defendant is held in pretrial incarceration beyond the time set forth in paragraph (B), at any time before trial, the defendant’s attorney, or the defendant if unrepresented, may file a written motion requesting that the defendant be released immediately on nominal bail subject to any nonmonetary conditions of bail imposed by the court as permitted by law. A copy of the motion shall be served on the attorney for the Commonwealth concurrently with filing. The judge shall conduct a hearing on the motion.

(3) Any requests for review of the determination in paragraph (C)(3) shall be raised in a motion or answer filed pursuant to paragraph (D)(1) or paragraph (D)(2).

(E) Nothing in this rule shall be construed to modify any time limit contained in any statute of limitations.

Zak Goldstein 3/15/18 Zak Goldstein 3/15/18

PA Superior Court: Prosecution May Not Introduce Facebook Posts Without Proving Defendant Authored Posts

When can the prosecution use Facebook messages against the defendant?

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Mangel. In Mangel, the Superior Court held that the trial court properly denied the Commonwealth’s motion to admit supposedly incriminating Facebook messages against the defendant because the Commonwealth failed to prove that the defendant wrote the messages.

Commonwealth v. Mangel

Mangel involved the assault of a man at a graduation party. Prosecutors charged the defendant with Aggravated Assault, Simple Assault, and Harassment after the complainant told police that several fights ensued as a result of multiple people arriving uninvited at the party. The complainant stated that as he was walking away from the fights, he was struck in the back of the head, knocked to the ground, and repeatedly punched and kicked by the defendant and a co-defendant. The complainant did not know either defendant and had not spoken with them during the party, but he was able to identify them after family members showed him Facebook photos of the defendants. The complainant suffered facial lacerations, broken bones, and lost several of his teeth during the assault.

The Admission of Facebook Evidence

In order to prove the case against Mangel, the prosecution sought to obtain his Facebook records. The prosecution obtained a court order directing Facebook to provide records to them. The Commonwealth then filed a Motion in Limine asking the trial court to permit the introduction of screenshots of certain pages of a Facebook account for a “Tyler Mangel.” The screenshots showed various online and mobile device Facebook messenger messages. The Commonwealth also sought to introduce a photograph from the Facebook account of bloody hands which had been posted by a different individual on the Tyler Mangel page.

The trial court conducted a hearing on the Motion in Limine. At the hearing, an Erie County Detective attempted to authenticate the messages and photos for the Commonwealth. After being qualified as an expert witness in computer forensics, the detective testified that she had been asked to determine the owner of the Tyler Mangel profile page by the prosecution. In order to do so, she searched Facebook for the name Tyler Mangel. She testified that only one result appeared. She then compared that page to the screenshots that the prosecutors had given to her. She determined that both the screenshots and the page that she found bore the name Tyler Mangel, listed the account holder as living in Meadville, PA, and that some of the photographs on both the screenshots and the Facebook page were the same. The about section of the page also provided that the individual attended Meadville High School and that the username associated with the Facebook account was Mangel17.

The detective requested subscriber records from Facebook. Using those records, she determined that when the owner of the account created it, that person provided the name Tyler Mangel and email addresses with the name Mangel in them. The account was also linked to a specific cell phone number. The detective obtained a court order for Verizon records and traced the cell phone number to Stacy Mangel and a specific address in Meadville, PA. The court took judicial notice that this was the same address listed as the address for the defendant in the Criminal Complaint.

The detective concluded that the screenshots the Commonwealth wanted to introduce must have come from that account because both accounts 1) had the same name, 2) listed the account holder as living in Meadville, 3) listed the account holder as having attended the same high school, and 4) displayed photographs of the same individual. The trial court, however, asked the detective if she could provide that opinion to a reasonable degree of computer and scientific certainty that the account belonged to the defendant and whether the detective could testify that no one else accessed and posted things on the account. The detective testified that she could not provide that opinion with any certainty.

In addition to not being certain that no one else could have owned or used the Facebook account, the detective also confirmed that she did not obtain an IP address for the Facebook account. The defense lawyer also searched for the same name on his own phone and found five listings for Tyler Mangel. Finally, the detective did not link the cell phone information which she had obtained to the defendant.

The trial court denied the Commonwealth’s Motion in Limine to admit the Facebook evidence, and the prosecution appealed. The Superior Court affirmed the decision of the trial court. The Court found that the prosecution had simply failed to prove that the account belonged to the defendant, that the defendant had sent the messages in question or posted the pictures, and that the account could not have been used by someone else to do so. The Court also dismissed the Commonwealth's argument that the detective should not have been required to testify to a reasonable degree of certainty, noting that it is well-settled that all expert witnesses must be able to provide their opinions to a reasonable degree of certainty in the relevant field of study.

The Authentication of Facebook Messages in a Criminal Case

The Superior Court noted that there is relatively little case law in Pennsylvania on authenticating Facebook evidence and text messages in criminal cases. In general, Pennsylvania Rule of Evidence 901 provides that authentication is required prior to the admission of evidence. The party that seeks to introduce evidence must show to the court that the evidence is what it purports to be. In some cases, that can be shown through the testimony of a witness with personal knowledge. For example, had a friend testified that they had watched the defendant access the Facebook account, that could have been sufficient to show that it was the defendant’s account. Here, the prosecution had no direct evidence or witnesses with personal knowledge that could link the account to the defendant.

When the party seeking to admit the evidence does not have a witness with personal knowledge, the evidence may be authenticated through circumstantial evidence. Circumstantial evidence involves the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances surrounding it.

Here, the circumstantial evidence simply did not prove to a sufficient degree of reliability that the account belonged to the defendant or that the defendant had posted the information which the prosecution sought to introduce. Facebook accounts, like email and messaging accounts, can be accessed from any computer or smart phone with the appropriate user identification and password. The Court noted that social media presents unique challenges because of the great ease with which a social media account may be falsified. A legitimate account may also be accessed by an imposter.

In some cases, there may be sufficient circumstantial evidence with which to authenticate a social media account. Therefore, the Court ruled that social media evidence must be evaluated on a case-by-case basis to determine whether or not there has been an adequate foundational showing both of its relevance and its authenticity. The proponent of the evidence must show either direct or circumstantial evidence that tends to corroborate the identity of the author of the message or post. This could include testimony from the person who sent or received the communication, or contextual clues in the communication tending to reveal the identity of the sender. For example, if a message from the defendant's account arranged a meeting with a witness and then the defendant showed up to the meeting, the circumstantial evidnece would suggest that it was the defendant's account. However, social media can easily be hacked and forged, so the mere fact that an account has a person’s name or photo on it is simply insufficient to show that the account belongs to that person. The party introducing the evidence must be able to show more than that.

Here, the trial court properly prohibited the admission of the evidence because the prosecution showed only that the account appeared to belong to the defendant. The defendant never admitted ownership of it, and the prosecution did not call any witnesses to testify that they had communicated with the defendant using that account. Anyone could have created the account, added photos, and claimed that they went to Meadville High School and were Tyler Mangel. The prosecution also failed to provide date and time stamps to show when the posts were created, and the posts were ambiguous and did not clearly reference the allegations in the case. Accordingly, the Superior Court agreed with the defense attorney that the evidence was not sufficiently relevant and authentic. Therefore, it upheld the trial court’s ruling excluding the Facebook screenshots.

FACING CRIMINAL CHARGES? WE CAN HELP.

Philadelphia Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of cases in state and federal courts throughout Pennsylvania and New Jersey. We offer a complimentary 15-minute criminal defense strategy session to any potential client who is facing criminal charges or who may be under investigation by law enforcement. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 3/9/18 Zak Goldstein 3/9/18

PA Appellate Court Again Recognizes False ID to Law Enforcement Statute Requires Police to Explicitly Inform Defendant That They Are the Subject of an Official Investigation

False Identification to Law Enforcement

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Kitchen. In Kitchen, the court once again recognized that Pennsylvania’s False Identification to Law Enforcement Statute requires the Commonwealth to prove that the officer specifically informed the defendant that he or she was the subject of an official investigation prior to the defendant providing false identifying information to the officer. The court once again rejected the Commonwealth’s argument, which has been made repeatedly in prior cases, that the Commonwealth may prove a violation of the statute by showing that a defendant should have inferred the existence of an official investigation.

Commonwealth v. Kitchen

In Kitchen, Philadelphia police pulled the defendant over for making a right turn without activating her turn signal. The defendant pulled over, and police approached the vehicle. The officer testified that he asked the defendant for her license, registration, and insurance. The defendant did not have any paperwork for the vehicle, and she told the officer that she had rented the car. She also could not provide any paperwork for the car rental. After failing to provide any paperwork to the officer, the defendant gave the officer a fake name.

After the fake name she gave came back as a person with a suspended driver’s license, the officer decided to impound the vehicle. The officer used Philadelphia’s Live Stop procedure and called the Parking Authority to come tow the car. The officer removed the defendant from the car and conducted an inventory search of it. The officer found 76 packets of crack cocaine during the inventory search as well as a driver’s license with a different name on it from the name that the defendant had provided. The officer found additional packets of cocaine and some money throughout the car.

After finding more drugs and what may have been the defendant's real driver's license, the officer questioned the defendant further about her name. He told her that he believed that the name she had previously provided was actually the name of her girlfriend and that he had discovered that both the name provided and the name on the driver’s license he had found had suspended licenses. By this point, he had removed her from the vehicle and placed her in handcuffs, but she continued to give a fake name. The officer eventually arrested the defendant and charged her with Possession with the Intent to Deliver, False Identification to Law Enforcement, and related charges.

Is It a Crime to Give a Police Officer a Fake Name?

The defendant was found guilty of all charges in the trial court after the trial court ruled that she should have inferred from the circumstances that she was under official investigation for a violation of law. The defendant appealed, and the Superior Court reversed the conviction for False ID to Law Enforcement. Pennsylvania’s False ID statute simply does not make it a crime to merely provide police with a fake name. Instead, the statute provides:

A person commits an offense if he furnishes law enforcement authorities with false information about his identity after being informed by a law enforcement officer who is in uniform or who has identified himself as a law enforcement officer that the person is the subject of an official investigation of a violation of law.

Thus, the statute requires that a defendant first be informed that the person is the subject of an official investigation of a violation of law. Trial courts and prosecutors have frequently tried to argue that defendants should be expected to infer that they are under official investigation for a violation of law from the circumstances, meaning that if a defendant is placed in handcuffs and interrogated by police officers, the defendant should realize that they are under investigation and therefore be able to violate the statute. The courts have rejected this theory repeatedly. Instead, as the court again recognized in Kitchen, the statute requires the police to actually speak to the defendant and explicitly tell them that they are under official investigation for a violation of law. If the officer does not testify to having made that statement to the defendant, then a defendant cannot be properly convicted of False ID to Law Enforcement for providing a fake name or other incorrect identifying information. The Pennsylvania Supreme Court had already reached this conclusion in the case of In re D.S., and here, the Superior Court found that the rule still applies. Accordingly, the Court reversed the defendant’s conviction for false identification to law enforcement.

Award-Winning Philadelphia Criminal Defense Lawyers

If you are facing criminal charges, we can help. Our experienced and understanding defense attorneys know the law and will use it to your advantage. We offer a free 15-minute criminal defense strategy session to every potential client. If you have been arrested or believe you may be under investigation, call us at 267-225-2545 to speak with an attorney today.