Philadelphia Criminal Defense Blog

Zak Goldstein 8/5/18 Zak Goldstein 8/5/18

PA Superior Court: Prosecutors May Introduce Evidence that Defendant and Recanting Eyewitness Were Incarcerated Together

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Thomas, holding that the trial court properly permitted the Commonwealth to introduce evidence that the defendant and an eyewitness who later recanted were incarcerated in the same prison before trial together in order to suggest that the eyewitness recanted out of fear of the defendant. The Superior Court allowed this testimony despite the fact that the there was no concrete evidence to show that the defendant and the eyewitness had communicated while they were incarcerated together or that the defendant had pressured the witness in any way.

The facts of Commonwealth v. Thomas

Philadelphia Prosecutors charged the defendant in Thomas with first degree murder, carrying a firearm without a license (VUFA Sec. 6106), and possessing an instrument of crime. The jury found him guilty, and the trial court immediately sentenced him to the mandatory life in prison without parole on the murder charge as well as an aggregate 4.5 to 12 years of incarceration on the other charges.

The evidence at trial showed that the defendant, the decedent, and a group of other men were playing dice in Philadelphia. At some point during the game, the men concluded that the decedent was cheating. One player angrily walked away from the game, but the defendant told him that he was going to handle it. Witnesses testified that later, while the decedent was bending over to roll the dice, the defendant pulled a gun and shot at him from behind, causing the decedent to fall to the ground. The defendant then shot him two more times in the face. Two of the witnesses who testified that the defendant committed the murder were a man named K.F. and a man named E.M. Philadelphia Police responded to the scene and transported the decedent to the hospital, where he was pronounced dead.

Although K.F. gave a statement to police indicating that the defendant committed the murder, K.F. later recanted that statement and wrote a letter claiming that it was not the defendant who actually committed the murder. In response, prosecutors introduced evidence at trial that K.F. and the defendant were incarcerated at the same jail two months prior to trial. The defense attorney objected on the basis that telling the jury that the defendant was incarcerated would suggest to the jury that the defendant was a criminal, but the trial court overruled the objection and allowed the prosecution to introduce the evidence despite this potential for unfair prejudice against the defendant.

The Superior Court Appeal

After the jury convicted the defendant, he appealed to the Pennsylvania Supreme Court. As one of the main issues, he claimed that the trial court erred in admitting the evidence that he and K.F. were incarcerated in the same prison at some point prior to the trial and K.F.’s recantation. K.F. had previously claimed in a video-taped statement that he watched the defendant shoot and kill the decedent. However, K.F. was subsequently arrested on unrelated charges of his own. Within one month of his arrest and incarceration in the same jail as the defendant, K.F. wrote a letter recanting his video-taped statement. Therefore, the Commonwealth argued that the incarceration in the same jail was relevant to show both the defendant’s consciousness of his own guilt and to explain why K.F. recanted his prior statement.

On appeal, the Superior Court agreed. It recognized that the courts have long recognized that any attempt by a defendant to interfere with a witness’s testimony is admissible to show a defendant’s consciousness of guilt. Additionally, the Commonwealth may cross-examine a witness in an attempt to show that there are reasons, such as fear or intimidation, why a witness may have changed his or her story. Therefore, the Commonwealth’s cross-examination of K.F. was relevant to show both the defendant’s potential consciousness of guilt and why K.F. may have changed his statement.

At the same time, the court recognized that there could be some prejudicial effect to informing the jury that the defendant was incarcerated prior to trial. However, the court found that the trial judge sufficiently eliminated the risk of unfair prejudice to the defendant by providing a cautionary instruction. In the instruction, the trial judge informed the jury that the jury should not consider the defendant to be a bad person or a person of bad character merely because he had been arrested and incarcerated pending trial. The judge made it clear to the jury that the only reason the defendant was in jail was because he was awaiting trial for this case, not because he was serving a sentence on some other case. The judge further instructed the jury not to draw any conclusions whatsoever from the mere fact that the defendant was in jail pending trial. Therefore, the Superior Court found that the trial court properly allowed the prosecution to ask these questions. It found the defendant’s other issues waived and upheld the conviction.

The court’s opinion, of course, completely ignored the fact that it was the Commonwealth’s fault that the defendant and the witness were held in the same jail. Philadelphia has at least four county prisons in which a defendant can be held while awaiting trial, and the jails have procedures by which inmates can be held separately from each other so that they do not have contact with each other. Prosecutors have the ability to house inmates in different counties or states when necessary and routinely do so. Here, the case suggests that the Commonwealth did nothing to inform the prison that the two inmates should be housed in different facilities. The Commonwealth also appears to have introduced no evidence that the two inmates actually came into contact with each other while incarcerated or that the defendant did anything to make the witness change his story. Nonetheless, the Superior Court seems to have ignored these basic facts in finding in favor of the Commonwealth.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients at trial and on appeal. We offer a free 15-minute criminal defense strategy session to any potential client. If you have been arrested or may be under investigation, call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 7/28/18 Zak Goldstein 7/28/18

Full Acquittal: Attorney Goldstein Wins Not Guilty Verdict in Attempted Murder/Carjacking Case

Criminal Defense Attorneys Zak Goldstein and Demetra Mehta

The Philadelphia criminal defense attorneys of Goldstein Mehta LLC have continued to find success on behalf of their clients in the courtroom, winning jury trials and motions to suppress in serious cases. Outside of the courtroom, we are also a source of insightful legal analysis on criminal defense issues in the news. Recently, our defense attorneys have won criminal cases involving charges ranging from Attempted Murder to DUI and Possession with the Intent to Deliver. Some of our recent wins include:

Commonwealth v. R. R. – Jury Acquits Client of Attempted Murder, Carjacking, and Related Charges

R.R. was charged with Attempted Murder, Robbery of a Motor Vehicle (carjacking), Robbery, Aggravated Assault, Conspiracy, and related gun charges. Prosecutors alleged that R.R. and a friend robbed the complainant after a drug deal, taking his cell phone, car keys, and a small amount of money. R.R. then shot the complainant twice when the complainant tried to demand that R.R. return the car keys. The complainant, however, initially denied to police at the scene that he knew who shot him. He was then briefly interviewed by detectives at the hospital, and he again reiterated that he did not know the person who shot him.

A few days later, after police allegedly received an anonymous tip that R.R. was the shooter in this incident, Philadelphia detectives re-interviewed the complainant. This time, he told them that R.R., a long-time friend, was the person who shot him and stole his car. A second witness also allegedly came forward a few days later and claimed to have been smoking marijuana with the complainant just before the shooting and that she was still present at the scene when R.R. shot the complainant. She called 911 right at the time of the shooting, but when police arrived at the scene, she refused to give a statement. She also did not claim that R.R. was involved in the shooting for a week or two. When she did finally give a statement, she said that she saw R.R. in the area right before the shooting, but she did not see the shooting itself. At trial, of course, she changed her story and testified that she personally saw R.R. shoot the complainant. In addition to the witness statements, police obtained cell phone records that showed that R.R. and the complainant had exchanged a number of text messages and phone calls directly before the shooting. Police also recovered the complainant’s car a few days later and held it for fingerprints and DNA .

Based on these later statements of the complainant and the eyewitness in which they claimed that R.R. was the shooter, police arrested R.R. and charged him with Attempted Murder and related charges. R.R. rejected the Commonwealth’s plea offer and decided to proceed by way of a jury trial. At trial, Attorney Goldstein was able to successfully argue to the jury that the witnesses had fabricated their statements. Attorney Goldstein highlighted the fact that the complainant gave two separate statements right after the shooting in which he did not tell police that R.R. shot him. He also impeached the eyewitness on the fact that she did not come forward for weeks and was on probation for theft at the time that she made the statement. He also confronted her with her original statement in which she never said that she actually saw the shooting itself. Finally, Attorney Goldstein called the police department’s own DNA analyst as a witness to testify that the steering wheel and gear shift of the complainant’s car had been tested for DNA and they had been unable to match the DNA to R.R.

In closing, Attorney Goldstein argued that the Commonwealth had simply failed to prove its case beyond a reasonable doubt. The DNA did not match R.R., there was no other physical evidence linking him to the crime, and both the complainant and eyewitness had failed to either implicate R.R. or come forward after the shooting. Both have given multiple contradictory statements, and even the assigned detective had given testimony that was impeached through his own police reports. The jury deliberated for approximately two hours before acquitting R.R. of all charges. R.R., who had been held pending the trial, was released from custody.

Commonwealth v. A.R. – Motion to Suppress Granted in DUI Case

Police arrested and charged A.R. with driving under the influence of marijuana and Xanax. The arresting officer claimed that he saw A.R. driving through Philadelphia with a defective center brake light, which is a violation of the motor vehicle code. Based on the defective brake light, the officer activated his lights and sirens and attempted to pull A.R. over. The officer claimed that A.R. refused to pull over for numerous blocks and seemed like he was trying to flee from the officer. Further, after A.R. did eventually pull over, the officer approached the car and immediately noticed the strong odor of marijuana coming from the vehicle. The officer further testified that A.R. had slurred speech, slow movements, was uncooperative, and admitted to smoking marijuana.

On paper, the case looked very difficult. Fortunately, A.R. retained Attorney Goldstein. Attorney Goldstein litigated a motion to suppress the statement regarding smoking marijuana and the blood test which showed the presence of marijuana and Xanax in A.R.’s blood. At the hearing on the motion, the officer testified that A.R. refused to pull over and immediately blurted out that he had been smoking weed, but the officer’s report directly contradicted his testimony. In his report, the officer specified the exact location at which he claimed he initially saw A.R. operating the car with the broken brake light and the location at which A.R. eventually pulled over. Although the officer testified that A.R. attempted to flee when the officer activated his lights and sirens, Attorney Goldstein was able to use a map of the area to show that in reality, A.R. had pulled over within two or three blocks at most of first coming into contact with the police officer. Given that A.R. actually pulled over within two or three blocks, the testimony that A.R. refused to pull over simply did not make any sense.

Further, the officer eventually admitted that he had not even waited for A.R. to roll down the window but had instead immediately opened the car door himself. Attorney Goldstein argued at the motion to suppress hearing that the Philadelphia Municipal Court judge should reject the officer’s testimony as not credible because of the obvious contradiction provided by the map and find that the officer engaged in an illegal search of the car when he opened the car door himself without giving A.R. the opportunity to roll the window down. Attorney Goldstein also called the police officer who conducted the blood draw at the police station an hour or two after the arrest to testify that he had not recorded any observations of intoxication or odor of marijuana on the report that this second officer created when he came into contact with A.R.

The Municipal Court judge agreed with Attorney Goldstein and granted the motion to suppress. Without the critical blood evidence and incriminating statement, prosecutors had no choice but to withdraw all charges.

Commonwealth v. K.H. – Judge Acquits Client of Drug Charges Following Bench Trial

Police charged K.H. with Possession with the Intent to Deliver, Knowing and Intentional Possession of a Controlled Substance, Conspiracy, and Possessing an Instrument of Crime. Prosecutors alleged that K.H. and another man sold drugs in Kensington. Philadelphia narcotics officers claimed that they set up surveillance from a vehicle parked down the block and began watching as the alleged buyers approached. The officer claimed that the buyers would each hand money to K.H.’s co-defendant, who was standing on the sidewalk, and then K.H., who was standing in an alley, would hand small items consistent with narcotics packaging to the alleged buyers. As the alleged buyers exited the block, back up officers would arrive and take them into custody. Police successfully stopped four of the five alleged buyers and found that they had drugs on them. Concluding that K.H. and the co-defendant must have been selling drugs, police then moved in to search the alley, the abandoned house nearby, and to arrest the defendants.

Police arrested K.H. and found that he had $40 on him. They arrested the co-defendant, who tried to run. They also found drugs which matched those found on the alleged buyers in the alley, and they found a shotgun in a nearby abandoned house which the surveillance officer claimed that he had seen K.H. briefly enter and exit. K.H. was arrested after walking in and out of a different house on the corner of the block. Officers claimed that they entered and searched both the abandoned house and the house which K.H. had walked out of right before being arrested.

K.H. immediately retained Goldstein Mehta LLC for his defense. At the preliminary hearing, recognizing that the case would become significantly less serious if K.H. were not facing gun charges, our criminal defense attorneys focused on getting the Possessing Instrument of Crime charge which stemmed from the discovery of the shotgun in the abandoned house dismissed. Attorney Goldstein extensively cross-examined the police witnesses on whether they had ever seen K.H. in possession of the gun, whether the gun was out in the open in the abandoned house, and whether police had attempted to obtain fingerprints or DNA from the shotgun. Because the shotgun was hidden, police never saw K.H. in possession of it, and police had not bothered to conduct any forensic testing on the gun, Attorney Goldstein was successfully able to move for the dismissal of the gun charge. Attorney Goldstein also cross-examined the main police officer on the location from which he was supposedly watching the drug sales, which would become extremely important at trial.

K.H. then elected to proceed to a bench trial in which the trial judge, instead of a jury, makes the decision as to guilt. At the bench trial, the narcotics officers testified to roughly the same story that they had provided at the preliminary hearing. They claimed that K.H. provided small objects, which later turned out to be drugs, to five alleged buyers. They also claimed that they were successfully able to stop and arrest four of those five buyers and recover the drugs which K.H. had allegedly sold.

On cross-examination, however, Attorney Goldstein was able to use photographs of the crime scene to establish that the officer would not have been able to see into the alley to see who was actually making the drug sales from the location in which he said he was parked at the preliminary hearing. Attorney Goldstein also successfully established that the officer had searched the corner property on the street without a search warrant. Although the officer tried to claim that he could legally search the property without a warrant because the property was abandoned, Attorney Goldstein used photographs of the house and K.H.’s lease for the property to show that the property was not abandoned and police had entered the house without a warrant. Finally, Attorney Goldstein introduced character evidence which showed the judge that K.H. had never been arrested before and had an excellent reputation in the community for being a peaceful, law-abiding citizen. After recognizing that K.H. had no prior record, had not been found in actual possession of any drugs, and that the abandoned house was not actually abandoned, the trial judge found that she had reasonable doubt as to whether K.H. was actually the person in the alley. The judge found K.H. Not Guilty of all charges despite the fact that police claimed to have seen him selling drugs to five separate people.

Attorney Goldstein Quoted in Philly.com Articles on Indecent Assault and Impact of #MeToo Movement on Criminal Defense Strategies

In addition to winning cases in the courtroom, our attorneys are often asked for analysis of criminal defense issues by the media. For example, Attorney Goldstein was recently quoted in two separate articles in the Philadelphia Inquirer.

In one article, Attorney Goldstein was asked to provide insight on how attorneys are responding to the #MeToo Movement in sexual assault cases. You can read the article here.

In the other article, Attorney Goldstein was asked to comment on the potential charges a person could face for groping a stranger in public and whether the victim would face charges if he or she responded by punching the groper. You can read the article here.

Facing criminal charges? We can help.

If you are under investigation or facing criminal charges in Pennsylvania or New Jersey, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients in state and federal courts throughout PA and NJ. We are experienced and understanding defense attorneys with the skill and ability to help you with your case, and we are not afraid to take a case to trial. We offer a free 15-minute criminal defense strategy session to each potential client. Call 267-225-2545 to speak with a criminal defense attorney today.

Zak Goldstein 7/21/18 Zak Goldstein 7/21/18

PA Supreme Court: Quality of Evidence Should Be Considered When Evaluating Whether After-Discovered Evidence is Cumulative or Corroborative

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Small, holding that the quality of evidence is relevant in determining whether a defendant is entitled to a new trial based on the after-discovered evidence prong of the Post-Conviction Relief Act (hereinafter “PCRA”). In general, after-discovered evidence may help a defendant get a new trial after a conviction, but the evidence may not be cumulative or corroborative of the type of evidence that was already presented at the original trial. In Small, the Court held that stronger evidence in support of a proposition for which there was some evidence introduced at trial may require a court to grant a new trial.

Commonwealth v. Small

On March 7, 2011, the decedent was killed after he suffered a contact gunshot wound to the left side of his head after he left a local club in Harrisburg, Pennsylvania. No one saw the actual shooting, but a number of witnesses saw the defendant with the decedent moments before the shooting. The Commonwealth alleged that the defendant shot the victim because of his loyalty to a Mr. Espada. Specifically, the Commonwealth alleged that the defendant, who grew up with Espada, killed the decedent because the decedent had previously assaulted Ms. Tyson, the mother of Espada’s children.

The Commonwealth presented multiple witnesses to support this theory. Because no one actually witnessed the shooting, the Commonwealth relied primarily on circumstantial evidence at trial. For example, the Commonwealth called Ms. Tyson to testify about the decedent’s assault of her. Mr. Williams, the defendant's sister’s boyfriend, testified that he saw the defendant and Espada with the decedent moments before his demise. Although he did not see the defendant shoot the decedent, he did see the defendant standing over the decedent’s body before he fled the scene. The Commonwealth also called Mr. Evans to testify that he and a Mr. Gibson pursued the person whom they believed to be the shooter immediately after the shooting. They stopped their pursuit after someone fired two gunshots in their direction.

The Commonwealth also called Mr. Knight, who was one of the defendant's friends. He testified at trial that he saw the defendant approach the decedent and put his arm around him. He also saw the defendant running towards the river immediately following the shooting and, later on in the night, make statements such as “we did what we had to do” and “if it came down to it, pin it on my boy [Espada].” The Commonwealth also called police as witnesses. Specifically, the officers testified that they were able to track footprints in the snow that lead from the crime scene, to the riverfront, and then back to the defendant's apartment complex. Additionally, they called a forensic pathologist who testified that the decedent died as a result of a “contact gunshot wound” and that the gun that killed the decedent had to be pressed into the left side of his face. In addition to this circumstantial evidence, the Commonwealth also presented the testimony of two inmates who were former cellmates with the defendant. Supposedly, the defendant admitted to both of these cellmates that he killed the decedent.

At trial, the defense did not call any witnesses. Instead, they relied on the Commonwealth’s witnesses to establish the theory that Espada was the shooter. On cross examination, the defense was able to ascertain that Ms. Tyson had just given birth to one of Espada’s children only two weeks prior to the decedent assaulting her. Additionally, they were able to ascertain that Espada was more upset about this assault than the defendant and thus had a stronger incentive to kill the decedent. Espada was also in close proximity to the decedent prior to his murder.

Further, the defense was able to show that Espada shot at Mr. Gibson and Mr. Evans immediately after the shooting. They also were able to show that Espada had confessed, on at least two occasions, to the murder of the decedent. The defense was able to elicit this through the testimony of the defendant's sister. She testified that Mr. Espada confessed to his then-girlfriend that he had killed the decedent. Finally, in regards to the two jailhouse informants, they were able to impeach them to show that they received favorable treatment in their own pending cases in return for their testimony against the defendant.

After-Discovered Evidence

At the conclusion of the trial, the jury convicted the defendant of first-degree murder and firearms not to be carried without a license. The trial judge sentenced him to life in prison as required by law. The defendant then filed several appeals which were ultimately denied. He then filed a timely PCRA petition. The PCRA petition sought a new trial on after-discovered evidence grounds. The defendant attached as an exhibit a notarized statement from Ms. Tyson. In this statement, Ms. Tyson stated that she withheld from the police and the jury that Espada admitted to her that he, not the defendant, shot the decedent. She also provided details about Espada's appearance and demeanor after the shooting which suggested that he could have been the shooter.

The PCRA court held an evidentiary hearing on May 12, 2015. At this hearing, Ms. Tyson testified that within twenty-four hours of the murder, Espada called her and confessed to the murder. Ms. Tyson also spoke with Espada in person and described him as a “hot mess” and that “he cut his hair and he just looked like he was up all night crying and stuff and he was like shaken up.” According to Ms. Tyson, Espada killed the decedent because of his prior assault on Ms. Tyson. Ms. Tyson testified that she did not tell the police this because her children were in foster care and she was receiving threats on Facebook. She also stated that the police threatened her and that the reason she came forward was because she wanted to remove the stress she bore from withholding this information. On January 19, 2016, the PCRA court granted a new trial based on the defendant's after-discovered evidence claim. The court stated that Ms. Tyson’s testimony satisfied all four factors (as discussed later) which a petitioner must meet in order to obtain a new trial based on after-discovered evidence. However, the PCRA court did not specifically address the credibility of Ms. Tyson; meaning it made no finding as to whether or not it found her testimony to be truthful.

The Commonwealth appealed. The Superior Court reversed the PCRA court. It held that Ms. Tyson’s testimony was merely corroborative and cumulative of the evidence presented at trial. The Superior Court further held that this testimony “goes to the very heart of the defense’s theory at trial” and faulted the PCRA court for accepting Ms. Tyson’s testimony “with no apparent corroboration.” It is important to remember that there was already testimony introduced at trial that Espada admitted to committing the murder. The defendant then filed an appeal to the Pennsylvania Supreme Court.

What is The After-Discovered Evidence Prong of the PCRA Statute?

The law on after-discovered evidence has been around for almost two centuries. Pennsylvania courts will allow a defendant to receive a new trial if they present evidence that meets four requirements: 1) the evidence could not have been obtained prior to the conclusion of the trial by the exercise of reasonable diligence; 2) the evidence is not merely corroborative or cumulative; 3) the evidence will not be used solely to impeach the credibility of a witness; and 4) the evidence would likely result in a different verdict if a new trial were granted. This is a conjunctive test and a petitioner must satisfy each of these elements by the preponderance of the evidence standard. Additionally, there are timing issues. For example, a petitioner cannot file a PCRA petition while an appeal is pending, and the petition must be filed within one year of the petitioner's sentence becoming final or within sixty days of the discovery of the evidence if the petitioner is outside of that initial one year window. Further, the petition must still be serving the sentence in order to file a PCRA Petition. As shown by the elements, a petitioner can have an uphill battle in satisfying all four elements. The reason why it can be difficult to succeed on this motion is that the courts have articulated a public policy that seeks to limit continued litigation.

What is Merely Corroborative and Cumulative Evidence?

The Supreme Court accepted the appeal and ruled that the evidence was not necessarily corroborative or cumulative because it may have been evidence of a higher quality than the similar evidence which had been introduced at trial. However, because the trial judge did not specifically find that he or she believed the testimony, the Court remanded the case for a credibility determination.

In its decision, the Pennsylvania Supreme Court noted that in its After-Discovered Evidence jurisprudence the Court never precisely defined what is “merely corroborative or cumulative” evidence. Accordingly, the Court looked to other jurisdictions for guidance. Specifically, the Court analyzed decisions from both New York and Georgia. In those states, the appellate courts analyzed the grade or the character of the evidence that was newly discovered. The Pennsylvania Supreme Court found these positions persuasive and adopted them. Specifically, the Court held that “[i]f the new evidence is of a different and ‘higher’ grade or character, though upon the same point, or of the same grade or character on a different point, it is not ‘merely’ corroborative or cumulative, and may support the grant of a new trial based on after-discovered evidence.”

When applying this new rule to the instant case, the Supreme Court held that Ms. Tyson’s testimony, though technically cumulative, was a much higher grade and character, if believed, than what was presented at trial. Ms. Tyson was the mother of Espada’s children and thus her testimony would arguably be much more persuasive than what was presented at trial. Additionally, she would be able to testify about his physical appearance in the immediate after hours of this shooting, which could also be more persuasive than what was presented at trial.

Unfortunately for the defendant, despite this favorable ruling, he is not guaranteed a new trial. As stated above, the PCRA court did not make a clear credibility determination of Ms. Tyson in its opinion, which is necessary to rule on an after-discovered evidence petition. Therefore, the Pennsylvania Supreme Court chose not to grant the defendant's petition. Instead, it remanded the case for the PCRA court to make the credibility determination.

Facing Criminal Charges? We Can Help.

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, and Attempted Murder. 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 7/20/18 Zak Goldstein 7/20/18

PA Supreme Court: Participants in a Multi-Person Fight Are Not Automatically in a Conspiracy Together

The Pennsylvania Supreme Court Explains Conspiracy and Accomplice Liability and Reverses an Aggravated Assault Conviction

Criminal Defense Lawyer Zak T. Goldstein, Esq.

We previously wrote about the Pennsylvania Superior Court’s decision in Commonwealth v. Chambers. There, the Superior Court found that mace could constitute a deadly weapon where the use of the mace rendered the complainant vulnerable to and unable to defend himself from additional assaults from other people. This week, the Pennsylvania Supreme Court reversed the defendant’s conviction in Chambers, finding that the Commonwealth failed to prove either the existence of a conspiracy or accomplice liability beyond a reasonable doubt. Therefore, the Court reversed the defendant’s convictions for Conspiracy, Aggravated Assault, and possessing instruments of crime (“PIC”).

The Facts of Chambers

In Chambers, the defendant was charged with Conspiracy, Aggravated Assault, and related charges as a result of his participation in a street fight into which additional persons entered. The incident began when the complainant drove to an apartment complex in Philadelphia. Once the complainant arrived, he saw Chambers standing next to a Jeep which was blocking entrance to the driveway. The complainant beeped at the Jeep and asked Chambers and the Jeep’s occupants why they were blocking the driveway. He asked them to move. When they did not answer, the complainant continued to yell at them. Chambers did not say anything, but he gave the complainant a nasty look.

The complainant eventually drove up on the curb in order to drive by the Jeep and park. As he drove by, some kind of words were exchanged with Chambers. The complainant parked his car, approached Chambers, and asked Chambers why they were blocking the driveway. The verbal argument escalated into a fist fight, with Chambers throwing the first punch. The complainant defended himself. Once the incident became physical, other people jumped in and helped Chambers. A female approached the complainant from behind, tore his glasses from his face, and began scraping and scratching his cheek and forehead. The complainant continued to throw punches to defend himself, but he could not see what was going on. Chambers climbed on his back, pinned him down, and began punching him repeatedly. While Chambers was doing that, a woman sprayed mace in the complainant’s face. The witnesses did not identify any weapons other than the mace as being used during the fight.

Philadelphia Police eventually arrived on the scene and saw Chambers punching the complainant in the face. As the officer arrived, he heard some of the females in the group yelling at Chambers to stop. The officer grabbed Chambers, pulled him off of the complainant, and put him in his handcuffs. The complainant attempted to leave, but the officer grabbed him and also put him in cuffs. Chambers repeatedly yelled that he was going to kill the complainant in front of the officer. The officer observed that the complainant had a large cut on his face, and the complainant told the officer that someone cut him with a knife. The officer, however, searched everyone at the scene and did not find a knife. Additionally, witnesses testified that no one used a knife. There were also defense witnesses who testified that the complainant was much bigger than Chambers and had in fact instigated the fight. This defense witness also testified that he did not see a knife, but he heard Chambers yelling that the complainant had a knife and asking for others to find the knife.

Police transported the complainant to the hospital and decided not to charge him with any crimes. The complainant suffered broken ribs, a burned retina, a concussion, and a laceration above his eye which required stitches. Police decided to charge Chambers with aggravated assault, criminal conspiracy, possessing instruments of crime, terroristic threats, simple assault, and recklessly endangering another person.

Chambers proceeded by way of bench trial in the Philadelphia Court of Common Pleas, and the trial judge found him guilty of conspiracy and Aggravated Assault as a felony of the second degree. The trial judge’s decision to grade the Aggravated Assault as a second degree felony ultimately turned out to be critical to the appeal because Aggravated Assault as a second degree felony is very different from first degree felony Aggravated Assault.

F1 Aggravated Assault requires the causation or the attempt to cause serious bodily injury. F2 Aggravated Assault, however, involves causing or attempting to cause bodily injury with a deadly weapon. Recognizing that Chambers himself had not used any kind of weapon against the complainant, the Commonwealth argued that Chambers had at a minimum attempted to cause serious bodily injury. The trial court found that Chambers did not cause serious bodily injury but had instead cause bodily injury with a deadly weapon under a theory of conspiracy liability because of the female who entered the fight and sprayed the complainant with mace. Thus, in the initial appeal, the Superior Court upheld the decision of the trial court, finding that the mace could be a deadly weapon under the right circumstances.

The Supreme Court Appeal

Following the Superior Court’s decision, Chambers appealed again to the Pennsylvania Supreme Court. The Pennsylvania Supreme Court does not have to hear every appeal and instead chooses the cases which it wishes to review. In this case, the Supreme Court granted certiorari and agreed to review the case. This time, Chambers’s defense attorneys argued that the Superior Court erred in finding that he was on the hook for the F2 Aggravated Assault of the unknown female with the mace because Chambers had not used a deadly weapon himself and had not instructed or encouraged anyone else to join the fight or use a weapon.

The Supreme Court agreed. It recognized that because Chambers had not used the mace himself, the convictions could only be sustained if Chambers had engaged in a conspiracy to commit Aggravated Assault or had acted as an accomplice.

What is a Criminal Conspiracy?

First, the Court rejected the idea that Chambers had acted as part of a conspiracy to assault the complainant. Conspiracy is defined by the Pennsylvania Crimes Code as follows:

(a) Definition of conspiracy. - A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime. 18 Pa.C.S. § 903(a).

Thus, in order to prove a conspiracy, the Commonwealth must show an agreement to commit a crime, shared criminal intent between the conspiracy members, and an overt act committed in furtherance of the conspiracy. Once the Commonwealth proves these three things, a defendant may be convicted of both conspiracy as a separate crime and the underlying offense or offenses that the conspirators planned to commit.

The difficulty for the Commonwealth in proving conspiracy is that unless it has obtained the testimony of a cooperating witness or has engaged in a wiretap, it is difficult to prove the existence of a prior agreement. This is particularly true when a fight breaks out and a bunch of people jump into the fight. The mere fact that people help each other during a fight, even when those people know each other or are friends, does not mean that they made a prior agreement to commit a crime. Of course, even a quick signal to start a fight such as a nod to the other person could be evidence of a conspiracy. But here, there was no evidence of that. Chambers exchanged words with the complainant and then engaged in a one on one fight. There was simply no evidence whatsoever that Chambers encouraged other people to jump in or use mace. Accordingly, the Court found that the Commonwealth failed to prove a conspiracy and therefore any liability for the underlying offenses beyond the Simple Assault, REAP, and Terroristic Threats that Chambers committed himself.

What is Accomplice Liability?

Second, the Supreme Court also rejected the Superior Court’s reasoning that Chambers acted as an accomplice. Pennsylvania law provides the following definition for accomplice liability:

(c) Accomplice defined.—A person is an accomplice of another person in the commission of an offense if: (1) with the intent of promoting or facilitating the commission of the offense, he:

(i) solicits such other person to commit it; or

(ii) aids or agrees or attempts to aid such other person in planning or committing it; or

(2) his conduct is expressly declared by law to establish his complicity.

(d) Culpability of accomplice.—When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.

18 Pa.C.S. § 306.

The Supreme Court rejected the accomplice liability for two reasons. First, the Commonwealth had never before suggested that Chambers acted as an accomplice. It did not allege that he was an accomplice in the Bills of Information which it submitted prior to trial, and it never argued at trial that Chambers was an accomplice of the woman with the mace. Second, there was simply no evidence in the record whatsoever that Chambers had encouraged anyone else to do anything. He did not tell anyone else to join the fight and he did not ask anyone to use mace on the complainant. He did not even make any non-verbal signals towards the others who joined the fight. He simply had not done anything to solicit another person to commit a crime, and he had not aided or agreed or attempted to aid a person in committing a crime. Although he did hold the complainant down, the Court viewed it as clear that he held the complainant down for the purposes of punching the complainant himself. He did not hold the complainant down so that other people could mace him.

This is an excellent case because conspiracy is one of the most over-charged offenses in Pennsylvania. In virtually every case in which more than one defendant is charged with a crime, the Commonwealth will tack on a conspiracy charge even when there is little or no evidence that the defendants agreed in advance to commit a crime. This is particularly true in cases involving fights among large groups of people. It is a fundamental to criminal law that people should be responsible for their own actions and not the actions of others. Thus, a person should not be on the hook for someone else’s decision to jump into a fight and use a weapon if that first person had nothing to do with that decision and was engaged in a “fair” one on one fight.

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