Can prosecution witnesses testify by video? Sometimes.

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

In most cases, witnesses in criminal cases may not testify by video. This is particularly true for the prosecution as the defendant has a confrontation clause right to confront their accusers, and the appellate courts have held that that right includes the right to cross-examine witnesses face-to-face in the courtroom. The legislature, however, has provided that under certain circumstances, child witnesses may testify by video from somewhere else in the courthouse in a different room from the defendant. In the recent case of Commonwealth v. Lamont, the Superior Court upheld the defendant’s convictions for sexual assault charges and held that the trial court properly allowed the child complainant to testify contemporaneously via video.

The Facts of Lamont

In 2019, the complainant told her grandmother that the defendant, her grandmother’s boyfriend, had molested her. The complainant lived near the grandmother’s house, and the defendant would sometimes babysit the complainant while the complainant’s mother was at work. The grandmother confronted the defendant. He admitted to touching the complainant but claimed it was an accident. He promised to apologize. (This is a good example of why it is best to just remain silent when confronted with criminal allegations. Claiming that touching someone inappropriately was an accident is generally not going to help your case.)

After the defendant apologized to the complainant, the complainant told the grandmother the defendant had in fact molested her several times rather than just once. Again, the grandmother confronted the defendant. This time the defendant just stood there. The grandmother left for work, and the defendant left the home with all his belongings. The grandmother then contacted the police.

The defendant called the grandmother and begged her not to press charges. He apologized, threatened to commit suicide, and claimed he did not know why he molested the victim. (Again, this is incredibly damaging for a criminal case.) The grandmother put the call on speakerphone, and the complainant’s mother and her best friend overheard the conversation.

Prosecutors inevitably filed serious sexual assault charges against the defendant. Despite confessing to everyone, he proceeded by way of jury trial. Prior to the jury trial, the Commonwealth file a motion under 42 Pa.C.S. § 5985 notifying the defendant of its intention to have the complainant testify via video. The trial court held a hearing granting the Commonwealth’s motion and granted it. The complainant testified at trial via video. The jury convicted the defendant of serious Megan’s law offenses, and the defendant appealed.

Did the trial court properly let the complainant testify by video?

The defendant raised a number of issues on appeal, but the most interesting was his challenge to the trial court’s decision to allow the child complainant to testify via video. Pennsylvania law sometimes allows for child complainants to testify in a room other than the courtroom and have that testimony transmitted contemporaneously via video.

Prior to allowing a child victim to testify via video, however, the court must hold a hearing in open court or in camera and allow the parties to present evidence. Based on the evidence, the court must make a decision as to whether testifying either in an open forum in the presence of the fact finder or in the presence of the defendant will result in the child complainant suffering serious emotional distress that would substantially impair the child victim’s ability to reasonably communicate. In making this determination the court may observe the child complainant inside or outside the courtroom and/or hear testimony from a parent or custodian. Serious emotional distress does not just mean that the child will be upset. It does have a specific definition which deals with whether it will impair the child’s ability to communicate.

In this case, the defendant objected to the video testimony and argued that the complainant’s fear was not testifying in front of the defendant. Instead, the defense argued that the complainant’s real fear was that no one would believe her. The defendant claimed the complainant’s hesitance to testify in front of him came from speaking about a traumatic event, not from having to testify in open court, and therefore that the Commonwealth did not show the complainant would be unable to reasonably communicate in his presence.

The Superior Court’s Decision

The Superior Court approved of the trial court’s decision to allow the contemporaneous video testimony. The Superior Court relied on the record from the pre-trial hearing in the courtroom at which the mother and complainant testified. The Court noted the mother’s testimony regarding the changes in her daughter’s behavior after disclosing the incidents. Specifically, the mother testified that her daughter, the complainant, used to be involved in numerous sports and that she no longer participated in any of them. She said the complainant’s temperament changed from “very quiet” to “attacking” and explained the complainant had been nervous about testifying in front of the defendant. She stated the complainant had a “sigh of relief” when the mother told her she could testify by video.

Further, the Superior Court noted the victim’s testimony explaining that it was important when she gave a statement previously that the defendant was not there because it made it easier for her to focus on her testimony and not on the defendant.

In making its decision, the Superior Court noted that the trial court had the opportunity to observe the changes in the complainant’s demeanor and body language when she thought of testifying in front of the defendant. It believed the trial court had the best opportunity to assess the complainant’s state of mind in the context of the entire circumstances surrounding the proceeding before making its decision. The Court found the trial court’s on-the-record observations supported its finding that the defendant’s presence would have caused serious emotional distress and impaired the victim’s ability to communicate in the courtroom. Further, the Court found that the defendant suffered no prejudice because the trial court instructed the jury that video testimony is not out of the ordinary. Therefore, the Court affirmed the defendant’s conviction.

It is important to note that the video testimony must be contemporaneous and subject to cross-examination. Pre-recorded testimony is almost never allowed, and the defense must still have the opportunity to cross-examine a complainant. The video must also work - if there are issues with the connection, the quality of the audio or video, or the ability for the jury to hear and see the complainant, then that could be the basis for a challenge to this type of testimony, as well. Ultimately, this rule undermines a defendant’s right to confrontation. The whole purpose of subjecting witnesses to cross-examination live in the courtroom is to see if they will stick to their story when they have to face the accused. Indeed, that is the very definition of confrontation, and allowing witnesses to testify to a camera rather than the jury makes it easier for them to lie. Nonetheless, for now, the courts have approved of this type of video testimony for at least some juvenile alleged victims.

Facing criminal charges or appealing a criminal case in Pennsylvania? We can help.

Philadelphia Criminal Lawyer Zak T. Goldstein, Esquire

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, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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. 

The New 2024 Pennsylvania Sentencing Guidelines

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

A major update to the Pennsylvania Sentencing Guidelines went into effect on January 1, 2024. The new guidelines significantly revamp Pennsylvania’s system for sentencing defendants following a conviction at trial or guilty plea. The guidelines had largely been handled the same way since their creation, but now, the Pennsylvania Commission on Sentencing has significantly changed the way prior record scores are calculated and created a very different sentencing matrix. The old guidelines still apply to offenses committed before 2024. The new 8th edition of the guidelines apply for offenses committed on or after January 1, 2024.

What are the sentencing guidelines?

As an introductory reminder, prior to sentencing a defendant in Pennsylvania state court, a judge must calculate the guidelines for the offense. Every offense has an offense gravity score, and every defendant has a prior record score. The judge must correctly determine the offense gravity score (OGS) and the defendant’s prior record score (PRS). Where those two numbers meet on the sentencing guidelines matrix then provides the judge with a recommended range for the minimum sentence. With the exception of very short sentences (like 30 days in jail for possession of marijuana), every sentence in Pennsylvania must have a minimum and a maximum. The maximum must be at least double the minimum in order for the sentence to be legal.

Under Pennsylvania’s guidelines system, the judge must correctly calculate the sentencing guidelines and then consider sentencing the defendant within the range provided by the guidelines for the defendant’s minimum sentence. Ultimately, the judge does not have to sentence the defendant within the guidelines. The judge could decide there is something less serious about the case and go below the guidelines or something more serious about the case and go above the guidelines. Guideline sentences, however, are very difficult to appeal. It is generally easier to appeal a sentence when the judge departs from the guidelines.

The basic idea of the new guidelines is the same; every offense will have guidelines based on an offense gravity score and a prior record score. Calculating those numbers, however, has become a little bit more complicated.

The Offense Gravity Score

The offense gravity score is relatively easy to determine. The Pennsylvania Commission on Sentencing provides a list of offenses, and each offense has a numerical offense gravity score that goes with it. First, the defense attorney must determine the offense gravity score for each offense charged by reviewing the list of offenses in the complaint or bills of information. It is important to look at the specific subsection charged as different subsections may have different offense gravity scores.

Second, the attorney must determine whether any enhancements apply. The two most common enhancements are the deadly weapon possessed and the deadly weapon used enhancements. They apply when a deadly weapon like a gun or a knife was either used or possessed during the commission of the crime.

If a deadly weapon was possessed but not used, then the offense gravity score will be two points higher.

If the deadly weapon was used, then the offense gravity score will be three points higher.

The deadly weapon enhancements do not apply if the statute itself always involves the use of a deadly weapon because the use of a deadly weapon is an element of the offense. Possessing an instrument of crime, prohibited offensive weapons, possession of a weapon on school property, assault with a deadly weapon, and violations of the uniform firearms act do not require the application of the deadly weapon enhancements because the possession or use of a deadly weapon is part of the offense.

There are three other enhancements which are less likely to apply.

First, there is a school zone enhancement. If a controlled substance was delivered or possessed with the intent to deliver in a school zone, then there is a one point addition to the offense gravity score.

Second, there is a criminal gang enhancement of two points.

Third, there is a domestic violence enhancement of two points. If the defendant committed the offense against a family or household member, then the enhancement may apply.

It is important to accurately calculate the offense gravity score. Further, the calculation of the correct offense gravity score may be subject to litigation. If the Commonwealth alleges that a particular object was a deadly weapon but the object was not a gun or a knife, it may be possible to argue that the object was not actually a deadly weapon.

The defense should carefully review the pre-sentence investigation and calculation of the guidelines and object if the guidelines seem too high or are based on allegations the Commonwealth may not be able to prove. It is important to remember that the Commonwealth bears the burden of establishing that an enhancement applies by a preponderance of the evidence. It is not necessarily the defense attorney’s job to prove that it does not apply. The Commonwealth, however, may use circumstantial evidence in order to meet this burden.

The Prior Record Score

Second, the defense attorney must properly calculate a defendant’s prior record score. The system for determining the offense gravity score did not change significantly with the enactment of the new guidelines, but dealing with the prior record score is very different. Instead of looking at each charge for which a defendant has been convicted and assigning points to that charge and then adding those points up, the prior record score will now be based on the most serious offense of conviction for each case where a defendant was convicted of a crime.

There are four categories of offenses.

First, there are misdemeanors which have not been designated as serious crimes (POG1 offenses).

Second, there are third degree felonies and unclassified felonies (like possession with the intent to deliver) which have not been designated as serious crimes (POG2 offenses).

Third, there are serious crimes, first-degree felonies, and second-degree felonies (POG3 offenses). VUFA offenses and SORNA offenses are generally considered serious crimes that fall within the third category.

Fourth, there are crimes of violence which would otherwise be considered strike offenses (POG4 offenses). These include offenses like first-degree felony aggravated assault, attempted murder, rape, IDSI, and certain robberies and burglaries. There are other offenses which fall within this list. They are defined in 42 Pa.C.S. § 9714(g).

In calculating the prior record score, the defense attorney must determine which prior offense on the defendant’s record is the most serious. The attorney should then determine how many offenses of the same seriousness fro which the defendant has been convicted. The number of offenses for which the defendant has been convicted of the same seriousness will then determine the defendant’s prior record score based on where that number falls on this chart.

The Prior Record Score Matrix

For example, using the above chart, a defendant with two misdemeanors (which go under the POG1 category) will fall under prior record score one.

A defendant with two F1 robberies (which are crimes of violence that fall under POG4) will have the highest prior record score of four.

A defendant with three prior possession with the intent to deliver cases, which fall under POG2, will fall under prior record score three.

A defendant with two VUFA convictions (POG3), would have a prior record score of three.

Lapsing of Convictions for the Prior Record Score

Under the old guidelines, convictions were permanent. Even if a defendant was convicted of an offense fifty years ago, the offense would still count towards the defendant’s prior record score unless the offense was a juvenile adjudication and a certain amount of time had passed in between the adjudication and new offense. Now, convictions will no longer count if a defendant goes a certain amount of time in between arrests.

Juvenile Adjudications

First, juvenile adjudications lapse relatively quickly.

Juvenile adjudications for POG1 offenses (mostly misdemeanors) do not count towards the prior record score.

Juvenile offenses in POG2 (mostly third-degree felonies and PWIDs) do not count once the defendant turns 25.

POG3 offenses (felony ones and felony twos that are not crimes of violence) do not count if the defendant is “crime-free” for ten years.

Finally, POG4 adjudications (crimes of violence) do not count after 10 years crime-free if they were committed when the defendant was between 14 and 16 or after 15 years crime-free if the defendant was 16 or older.

Adult Convictions

Under the old guidelines, adult convictions counted forever. Now they may lapse after a certain amount of time.

POG1 offenses lapse after ten years from the conviction date even if the defendant was not crime-free.

POG2 and POG3 offenses lapse after 15 years of being crime-free.

POG4 offenses lapse after 25 years of being crime-free.

The time period for being crime-free runs either from the date of release from incarceration or the date of the sentence if the defendant received probation.

Again, if there is a dispute, the Commonwealth bears the burden of proving that lapse should not occur.

The following is the definition of a crime-free period:

‘‘Crime-free period.’’ Following a conviction and sentence and subsequent release to the community, the completion of a prescribed period of time without commission of a new felony or misdemeanor, for which the person pleads guilty or nolo contendere or is found guilty. For non-confinement sentences, release to the community begins on the date of sentencing; for confinement sentences, release to the community begins on the date of initial release on parole, or release following completion of the confinement sentence, whichever is earlier.

The New 2024 Pennsylvania Sentencing Guidelines Matrix

Once the criminal defense attorney has calculated the offense gravity score and prior record score, the next step is to see where those numbers meet on the below matrix. That number then provides a recommended minimum sentence for the judge to consider. The judge may go higher or may go lower, but the judge must properly calculate the guidelines and consider them. The judge must put the guidelines on the record, and if the judge decides to go above or below the guidelines in sentencing the defendant, the judge must announce the reasons for the departure on the record at the time of sentencing. The failure to properly calculate the guidelines or put the reasons for a departure on the record could be the basis for a successful appeal.

The New 2024 Pennsylvania Sentencing Guidelines Matrix (8th Edition)

A Judge May Depart From the Guidelines

Finally, a judge may depart from the guidelines. Judges may consider the following factors when deciding whether to depart:

(i) Nature and circumstances of the offense:

(A) Neither caused nor threatened serious harm.

(B) Conduct substantially influenced by another person.

(C) Acted under strong provocation.

(D) Substantial grounds to justify conduct.

(E) Role in offense.

(F) Purity of controlled substance.

(G) Abuse of position of trust.

(H) Vulnerability of victim.

(I) Temporal pattern.

(J) Offense pattern.

(K) Multiple offenses in a criminal incident.

(ii) History and character of the person:

(A) No history of criminal conduct.

(B) Substantial period of law-abiding behavior.

(C) Circumstances unlikely to recur.

(D) Likely to respond affirmatively to probation.

(E) Imprisonment would entail excessive hardship.

(F) Accepts responsibility.

(G) Provides substantial assistance.

(H) Compensated victim or community.

(I) Character and attitude.

(J) Treatment for substance abuse, behavioral health issues, or developmental disorders or disability.

(2) Unless otherwise prohibited by statute, the consideration of validated assessments of risk, needs and responsivity, or clinical evaluations may be considered to guide decisions related to the intensity of intervention, use of restrictive conditions, and duration of community supervision.

(3) Adequacy of the prior record score. The court may consider at sentencing prior convictions, juvenile adjudications, or dispositions not counted in the calculation of the PRS, in addition to other factors deemed appropriate by the court.

Obviously, this is a big list of reasons for a potential departure. At the end of the day, it is important to remember that the new guidelines, like the old ones, are not mandatory minimums. They provide the judge with a starting point for the potential sentence. In some counties, the guidelines are treated almost as mandatory minimums and it is rare to see judges go below or above the guidelines. In others, the guidelines are routinely calculated but then ignored. Additionally, the guidelines do not tell the judge whether to impose consecutive or concurrent sentences for different offenses. It is also not clear yet whether separate cases which were consolidated and disposed of at the same time will count as one case or two cases for calculating the prior record score, so some of these things will still be subject to litigation. Either way, it is important to correctly calculate the guidelines as they will give the defendant an idea of what they are facing if they are convicted and the improper calculation of the guidelines at sentencing could be the basis for an appeal or PCRA claim.

Facing criminal charges or appealing a criminal case in Pennsylvania? We can help.

Philadelphia Criminal Lawyer Zak T. Goldstein, Esquire

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, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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 Legislature Reforms Probation to Limit Jail for Technical Violations and Encourage Early Termination of Probation

The Pennsylvania legislature recently passed a probation reform bill which improves the conditions of probation and provides some protections to defendants under many circumstances. The bill did not go as far as advocates wanted, but it does implement some meaningful changes to probation in Pennsylvania. The governor signed Senate Bill 838 into law at the end of December 2023, and it is important to be familiar with the changes created by the new law. Learn more.

PA Superior Court: Trial Judge May Ask Each Potential Juror if They Would Be Able to Convict Based on Complainant’s Testimony Alone

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Walker. The Court held that a trial court may allow prospective jurors to be asked, during the voir dire process in a sexual assault case, if they could follow the legal principle that the testimony of an alleged victim standing alone, if believed, is sufficient proof to find the defendant guilty beyond a reasonable doubt. Jurors often receive an instruction similar to the question prior to deliberations, and many judges routinely ask this question prior to trial. However, this is the first time an appellate court in Pennsylvania has specifically held that it is appropriate for the trial judge to question each juror on whether they’d be able to follow that instruction, which reminds them that no evidence other than someone’s statement is required to convict, as part of jury selection.

The Facts of Walker

The complainant, who was eighteen-years old at the time of the trial, testified that in 2013, her mother was dating the defendant. The defendant would babysit the complainant and her infant sister while their mom was at work. She testified that the defendant would come into her room and sexually assault her. The defendant did this every other day. The victim told her mother and grandmothers. She also told her doctor. Her doctor tested her for STDs, and the test was positive. The complainant’s mother did not believe her and became angry with her. The complainant also disclosed to one of her teachers when she was sixteen years old.

The complainant testified that she remembered participating in a forensic interview, and she claimed at trial she had told the interviewer about the abuse. The defense played the video of the interview, however, and it showed that she had actually denied that the abuse occurred. After being confronted with that inconsistency, she insisted that she did not disclose the abuse at the time because she was afraid.  

The complainant’s grandmother and her high school teacher also testified that the complainant disclosed the abuse to them.

Prosecutors charged the defendant with various sex crimes in 2019. He proceeded by way of jury trial and was found guilty. The trial court sentenced him to 30.5 - 61 years’ incarceration. He appealed.

The Superior Court Appeal

On appeal, the defendant challenged the jury selection process. Specifically, the court asked each juror the following:

Under Pennsylvania law, the testimony of the alleged victim standing alone, if believed by you, is sufficient proof upon which to find the defendant guilty in a sexual assault case. Thus, you may find the defendant guilty if the testimony of the alleged victim convinces you beyond a reasonable doubt that the defendant is guilty. Would you be able to follow this principle of law?

The defendant argued that this question was improper. It conditioned the jurors to find him guilty without any other evidence other than the complainant’s testimony that he committed a sexual offense.

The Superior Court’s Decision

The Superior Court rejected this claim on appeal. It ruled the question was proper and trial courts have broad discretion when conducting voir dire. The Court disagreed with the defendant as to the purpose of the question. The Court found the question was aimed at identifying potential jurors who held fixed beliefs that would not be compatible with Pennsylvania law if they were unable to set aside those beliefs. The Court also found the question to be phrased properly as it identified the beyond a reasonable doubt standard as well as language from the statutory provision codifying the principle of law that oral testimony is almost always enough to convict if a crime so long as the testimony is believed by the jurors beyond a reasonable doubt. Further, the Court found that any issue with the voir dire question was cured by the trial court’s instructions explaining that the Commonwealth had the burden of proving each and every element of the crimes charged beyond a reasonable doubt.

Therefore, the Superior Court denied the appeal. It also ruled that the trial court properly sentenced the defendant, did not consider any improper factors during sentencing, and did not impose an excessive sentence.

This jury instruction is tough for the defense. Jurors do not have to convict in the absence of any corroborating evidence, but Pennsylvania law is very clear that they may convict based on testimony alone so long as they believe the testimony beyond a reasonable doubt. Many potential jurors are surprised to learn this and express that surprise when asked this question even if they believe they would be able to follow the instruction. The prosecution is then easily able to strike those potential jurors from the panel, making it more difficult for the defense to get jurors who would want to see some corroborating evidence before convicting based on oral testimony. It is important for the defense to follow up during jury selection or arguments and stress that jurors never have to convict based solely on testimony. They are free to disbelieve the testimony, and if they’re on the fence, they are free to insist on more evidence. The Superior Court, however, has now approved of asking each juror this question during jury selection.

Facing criminal charges or appealing a criminal case in PA? We can help.

Philadelphia Criminal Lawyer Zak T. Goldstein, Esquire

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, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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.