PA Superior Court: Defendant Has Right to Attorney of Their Choice

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court has decided the case of Commonwealth v. Lewis, holding that a trial court has the power to disqualify an attorney from representing a criminal defendant but only in the most extreme circumstances. The Superior Court determined that this was not such a case as the Commonwealth and court failed to show that the alleged misconduct of the attorney could not be remedied or that the Commonwealth could not receive a fair trial.

Therefore, the trial court violated the defendant’s constitutional right to counsel by removing the defendant’s chosen attorney. The Superior Court vacated the defendant’s subsequent conviction which the Commonwealth obtained while he was represented by a different attorney and remanded for a new trial.

The Facts of Commonwealth v. Lewis

One evening in 2018, the defendant barricaded himself in his residence. An Emergency Response Team ("ERT") was summoned to the scene and communicated with the defendant to get him to surrender. Shortly after midnight, the defendant began shooting out of his residence. Over the next six hours, the defendant fired at least 30 shots, including several that struck an armored vehicle operated by ERT. Just after 7 a.m., the defendant left his residence and surrendered to ERT members.

The Commonwealth subsequently charged the defendant with 12 counts of attempted homicide, 24 counts of aggravated assault, 21 counts of recklessly endangering another person, two counts of possessing an instrument of crime, and one count of institutional vandalism. The defendant was appointed a public defender but quickly became dissatisfied with them. In 2019, the defendant retained private counsel to represent him. Just before the trial in 2020, the defendant’s attorney allegedly supplied body camera footage from an ERT member to a local newsgroup that aired the footage. The attorney also gave an interview commenting negatively on the lead officer’s professionalism.

The Motion to Disqualify

The Commonwealth filed pre-trial motions with various requests. The motions included a request to disqualify the defendant’s attorney for supposedly unethical actions that violated the Rules of Professional Conduct. The trial court held a hearing to determine if it should disqualify the lawyer. The trial court concluded that the attorney’s conduct placed the fairness and integrity of the defendant's trial in jeopardy. The court claimed that the unethical behavior of the attorney was an attempt to taint the jury pool by putting out irrelevant, inadmissible information that a jury would never see. The judge further opined that the attorney’s actions must have been an attempt to force the Commonwealth into making a better plea offer. The trial court found that the conduct was so outrageous that a fair trial could not take place with the defendant being represented by the current attorney. The court therefore removed the attorney from the case over defense objection. The defendant retained new counsel and proceeded with a jury trial. 

In 2021, a jury convicted the defendant of two counts of attempted homicide, 13 counts of aggravated assault, seven counts of recklessly endangering another person, two counts of possessing an instrument of crime, two counts of criminal mischief, one count of terroristic threats, and one count of institutional vandalism. In early 2022, the trial court sentenced him to 27.5 to 57 years of incarceration.

The Superior Court Appeal 

The defendant filed an appeal raising only one issue: he challenged the disqualification of his original private counsel. The Commonwealth argued that the standard of review is an abuse of discretion standard. An abuse of discretion standard is a difficult standard to meet that gives great deference to the trial court. Only when the law is misapplied or the result is unreasonable can a defendant win with this level of review. The Superior Court determined their review to be plenary, which means they can review the question of law without giving deference to the trial court and make their own conclusion.

The Superior Court began its analysis by reiterating that while the appeal necessarily focuses on the defense attorney’s actions, it is the defendant’s constitutional right to counsel that is at stake. It is unquestioned that a criminal defendant has an absolute right to counsel under the Sixth Amendment of the Constitution of the United States and Article I, Section 9 of the Pennsylvania Constitution. Furthermore, a defendant has a constitutional right to secure counsel of his choice. If the trial court violates the defendant's right to proceed with an attorney of his choosing, he is entitled to a new trial because prejudice is presumed.

At the same time, the trial courts have the power to disqualify a defendant’s attorney. A court may do so only when it is absolutely essential. In determining when such extreme action may be necessary, the courts have used a two-step approach: a court must find that (1) there is no other remedy available for the attorney’s violations, and (2) there is no other way to ensure the Commonwealth's right to a fair trial.

Here, the Superior Court disagreed with the trial court on both counts. First, the Superior Court examined the defense attorney’s conduct. It concluded that the record supported the trial court's factual findings, and the defendant did not challenge those findings. The attorney arguably violated the Pennsylvania Rule of Professional Conduct (“Pa.R.P.C.”) rule 3.6 by making public statements that had a substantial likelihood of causing prejudice to the proceeding. However, a trial court cannot disqualify an attorney solely for a rule violation, and it also may not do so merely to punish the attorney for the violation.

The Superior Court found two errors with the trials court’s ruling. First, the court found that the trial court’s focus on the defense attorney’s past behavior indicated that the disqualification was punitive. Second, the court noted that the trial court focused on the outrageousness of the attorney’s conduct, not on whether it would continue and, in a way, prejudice the Commonwealth at trial. The Superior Court cited testimony showing that there were three pre-trial motions before the one to disqualify the attorney. In those three motions, there was a mutual agreement between the Commonwealth and the defense attorney to stop making public statements and that the body camera footage or officer disciplinary history was irrelevant to trial unless the Commonwealth brought it up themselves. Therefore, the Superior Court concluded there was a remedy to the attorney’s conduct and that the attorney had agreed not to violate any other rules.

Finally, the Superior Court looked at whether or not the prior conduct was enough to taint the jury pool and deny the Commonwealth a fair trial. The court concluded that two local media broadcasts were not pervasive enough to justify a presumption that the jury could not fulfill its duties fairly. The Superior Court also cited testimony from jury selection to emphasize the point. Jury selection showed that during the entire jury voir dire, only one potential juror had previous knowledge of the events, and that knowledge was vague at best.

Therefore, the Commonwealth was able to receive a fair trial, and the violation of the attorney’s actions was able to be remedied. The Superior Court vacated the defendant’s judgment of sentence and remanded for a new trial. This is an important case as it shows that courts should not be quick to interfere with the defendant’s decision of counsel and may do so only when absolutely necessary.

Facing criminal charges? We can help.

Criminal Defense Attorney Zak Goldstein

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

PA Superior Court: Trial Court May Grant New Trial in Criminal Case Sua Sponte

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court has decided the case of Commonwealth v. Becher, recognizing that a trial court may grant a new trial to a defendant on its own even after a conviction. The Superior Court, however, reversed the grant of the new trial in this case because the error relied upon by the trial court in granting the new trial was not significant enough to justify such an extreme measure. This case is helpful for the defense in that it reaffirms the ability of the trial judge to grant a new trial when an egregious error has occurred, but it was not good for this defendant as this particular defendant had his grant of a new trial reversed.

The Facts of Commonwealth v. Becher

The defendant, three of his cousins, and a friend went to a strip club. There were members of a motorcycle club at the strip club who started an altercation with an intoxicated person and beat him up outside of the club. One of the defendant’s cousins taunted the club members for beating up an intoxicated person. The cousin and a club member started to fight but were quickly separated. Another cousin entered the club to grab the defendant. He was unaware of any altercations. At that time, the two remaining cousins reinitiated the fight. The defendant emerged from the club, observed the physical altercation, drew his gun, and struck one of the club members with it. The defendant then dropped the gun, and a melee ensued. During the struggle, the defendant was shot, recovered the gun himself, and shot two club members.

The Issue at Trial

At trial, three motorcycle club members testified that during the fight, the defendant’s cousin kept yelling that she was going to get her cousin and have him “smoke” them. After the Commonwealth had witnesses testify to this threat, the defendant's lawyer objected on hearsay grounds to the admission of the cousin’s threats. The trial court overruled the objection. The Commonwealth referred to the cousin's threats in closing arguments, and the trial court gave the jury a cautionary instruction. The trial court instructed the jury not to use the statements against the defendant as proof of his intent.

A jury found the defendant guilty of third-degree murder, finding he did not act in self-defense. The defendant’s lawyer filed a motion for a new trial alleging that the verdict was against the weight of the evidence. At sentencing, the trial court ruled that it would grant the defendant a new trial for a different reason. The trial court found that a new trial was necessary in the interests of justice because the testimony of the cousin’s threats was blatant and inadmissible hearsay. The trial court determined that it should have precluded the threats. Alternatively, if the statements were not hearsay, they were still unfairly prejudicial and should not have been admitted. Therefore, the trial court granted the defendant a new trial sua sponte.

The Appeal

The Commonwealth filed an appeal to the Pennsylvania Superior Court. On appeal, the Commonwealth argued that the trial court abused its discretion in sua sponte granting a new trial to the defendant because none of its reasons supported taking such an extreme measure.

The Superior Court agreed. The Court recognized that a trial court may grant a new trial sua sponte in the interests of justice. The ability to do so, however, is limited. Generally, a court may only do so when there has been some kind of egregious error in the proceedings. Additionally, the standard that must be met depends now whether a party to the proceedings has recognized and preserved the error. When a party recognizes an error but fails to preserve that error, there must be an exceedingly clear error of a constitutional or structural nature. The result must be a manifest injustice that amounts to severely depriving a party's liberty interest. Because the defendant’s attorney was aware of and objected to the threats at some point during the trial, the Superior Court reviewed the grant of a new trial under this higher standard. The lawyer had objected but not moved for a mistrial.

First, the Superior Court rejected the trial court’s conclusion that the threat was blatant, inadmissible hearsay. Instead, the threat had been admitted for a proper purpose. The threat was not used to prove the defendant’s state of mind but instead to tell the whole story of events. Further, a threat to do something is not necessarily a statement offered for the truth of the matter asserted. Instead, it is more of a present sense impression in that it is a statement about what someone intends to do. In this case, the witness intended to have the defendant commit the shooting.

The Superior Court also rejected the trial court’s conclusion that the statement was more prejudicial than probative. The Court found both that the statement was relevant, that it was not unfairly prejudicial, and that the trial court prevented any unfair prejudice by giving the jury a cautionary instruction that it should not hold the statement against the defendant. Therefore, the Court concluded that trial court erred in granting a new trial. The errors cited by the trial court were not actually errors, and even if they were, they were not big enough to justify a sua sponte grant of a new trial.

Therefore, the Superior Court concluded that the trial court abused its discretion in granting the defendant a new trial sua sponte. The Court reversed the trial court's order and remanded it to hear the motion for a new trial based on the weight of the evidence argument. The case obviously does not help this particular defendant, but it does reaffirm that where an error is egregious enough, a court retains the inherent authority to order a new trial in order to fix that error.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

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

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

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

 The Facts of Freeman v. Fayette

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

The Criminal Appeal

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

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

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

The Third Circuit’s Decision 

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

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

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

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

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Attorney Goldstein Wins Release of Wrongfully Convicted Man Who Spent 33 Years in Prison

Last week, I obtained the dismissal of all charges for a client who had been convicted of first-degree murder 33 years ago and sentenced to life without parole.

In 1989, Philadelphia Police arrested Kevin Bowman and charged him and his co-defendant with murder for a shooting incident that left one man dead and another injured. The only evidence against Mr. Bowman was supposedly the statements of the surviving complainant. At the preliminary hearing and at trial, that man denied that Mr. Bowman shot him and that he had ever told the police that Mr. Bowman was involved in the shooting.

Nonetheless, five police detectives, many of whom have already been sued for misconduct by other wrongfully convicted men, took the stand and each testified that the complainant had made five statements to them and identified Mr. Bowman as one of the shooters. The complainant denied making the statements, and four of them were unsigned. The detectives, however, swore to the jury that the complainant was physically unable to sign the statements at the time due to a hand injury.

Under the oft-abused Brady-Lively rule, the court permitted the prosecution to introduce the statements into evidence as substantive evidence of Mr. Bowman’s guilt even though the complainant denied making them. The prosecution then argued that the jury should believe that the complainant made the statements and told the truth at the time of the statements rather than at trial or the preliminary hearing. The prosecution had no other evidence, so the jury was left to guess as to whether the statements were true or the trial testimony was true. Without any corroboration whatsoever, the jury convicted, and Mr. Bowman was sentenced to life without parole. He had been in custody for 33 years. Last week, a Philadelphia judge ordered his release.

After learning from his co-defendant, who was also convicted, that the co-defendant’s lawyers had obtained access to the file and found potentially exculpatory material which was never disclosed to the defense, Mr. Bowman retained me to investigate his case. I also gained access to the District Attorney’s file, and I found medical records for the complainant and interviews with the hospital personnel that showed that the detectives’ story was impossible. On many of the same dates that the detectives claimed the complainant had a hand injury which prevented him from singing the statements, the complainant had actually signed medical treatment consent forms. The records also showed that his injuries would not have prevented him from signing anything, and one nurse even told the detectives that he had been communicating with the providers by writing notes.

Other doctors told the detectives that the complainant would have been under the influence of medication which could have impacted his ability to tell them what happened. The complainant also told a hospital social worker that he thought someone else might have been responsible for the shooting. And shortly before trial, the Commonwealth submitted the one signed statement for handwriting comparison against other known signatures of the complainant, showing that they had even begun to doubt the testimony of their own detectives. Unsurprisingly, the results were inconclusive, suggesting that even the signed statement may have been a forgery. Finally, and perhaps most outrageously, the file contained a statement from another man who had approached police a day or two later and told them that he had been involved in the shooting and might have hurt someone. Police records showed that they transported the man to the hospital, but it is unclear what they did after that. The prosecutor did not provide any of this critical information to the defense.

Despite the prosecutor having material in his file which showed that the complainant could sign the statements, that the complainant was on strong medication, that the complainant thought someone else might have been the shooter, that the signature might not be the complainant’s, and that someone else had confessed to the crime, the Commonwealth proceeded to trial. Each detective took the stand and insisted that the complainant was unable to sign the four unsigned statements because his hand was injured. And a jury quickly convicted Mr. Bowman. The Commonwealth sought the death penalty, but fortunately, the jury sentenced Mr. Bowman to life in prison.

After finding this material, I filed a Post-Conviction Relief Act Petition arguing that Mr. Bowman should receive a new trial because the Commonwealth committed a Brady violation by suppressing exculpatory material that would have led to an acquittal. After two or three years of delays as we navigated the COVID shut downs and waited for the Commonwealth’s response, the Commonwealth did the right thing and agreed to a new trial. It then agreed that the charges against Mr. Bowman should be withdrawn, and Mr. Bowman was finally released last week. I went to meet him at SCI Chester and make sure that he was released the same day.

Mr. Bowman’s story is both unique and far too routine. It’s unique because he is one of the lucky few who received relief in a court system that is far too focused on upholding convictions even in the face of egregious error and misconduct. Mr. Bowman and his co-defendant had excellent defense attorneys at the time, but those attorneys could not overcome the Commonwealth’s complete failure to comply with its constitutional obligations and produce the exculpatory documents. It’s also unique in that he is truly an inspiring individual who had a perfect record at SCI Chester and prior institutions, helped create critical programming for other inmates, taught a class at Swarthmore College, and even after learning he was due to be released, went to work at his job in the prison.

It is too routine because people go to jail every day, sometimes for decades or even life, based on the testimony of a police officer that a witness who fails to even show up for court said something a few years ago. And in most cases, they don’t have the resources to investigate the case thirty years later or the good luck to find blatant evidence that the prosecution committed misconduct. Fortunately, Mr. Bowman’s criminal case is finally over, he is finally home with his family, and I know he is going to do big things.

Facing criminal charges? We can help.

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

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