Philadelphia Criminal Defense Blog

Zak Goldstein 5/14/24 Zak Goldstein 5/14/24

PA Supreme Court: Commonwealth May Not Use Hearsay Alone to Prove Identity of Perpetrator at Preliminary Hearing

Criminal Defense Attorney Zak T. Goldstein, Esquire — Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esq.

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Harris, holding that the Commonwealth may not meet its burden of proving that the defendant committed the crimes charged at a preliminary hearing through the use of hearsay alone. The issue in this case was whether Pennsylvania Rule of Criminal Procedure 542(E) permits the use of hearsay alone to establish a defendant’s identity at a preliminary hearing. The Supreme Court and Superior Court have both struggled with how much hearsay is allowed at a preliminary hearing. Under Rule 542, it is clear that the Commonwealth may use some hearsay to meet its burden at a preliminary hearing. But ultimately, as the Supreme Court held in Commonwealth v. McClelland, due process protections prohibit the Commonwealth from proving a prima facie case solely through hearsay, and following this decision, the Commonwealth may not prove the defendant’s identity as the perpetrator through the use of hearsay alone. The Commonwealth may prove elements such as ownership and non-permission for theft and property offenses using hearsay, and it may often introduce the observations of other police officers who were in constant radio contact with the testifying officer as well as lab reports, but Harris re-affirms the principle that preliminary hearings are an important part of the process at which the Commonwealth must introduce actual evidence to justify the filing of charges against a defendant and the potential detention of a defendant who cannot make or is not eligible for bail.

The Issue in Harris

Pa.R.Crim.P. 542 governs preliminary hearings in Pennsylvania, and it does provide for a number of situations in which the Commonwealth may introduce hearsay at a preliminary hearing. Specifically, Pa.R.Crim.P. 542(E) allows “hearsay to establish any element of an offense.” At the same time, Supreme Court case law like Commonwealth v. McClelland preclude the Commonwealth from proving an entire case using hearsay alone. This case, however, focused on the issue of whether the Commonwealth may meet its burden by proving that a crime occurred through non-hearsay and then proving the defendant’s identity as the perpetrator of the crime using hearsay.

The Facts of Harris

A Philadelphia Police Officer responded to a report of a shooting and found that complainant had been shot in the wrist and thigh. At the hospital, the complainant in a state of distress, identified the defendant and his brother as the shooters. The complainant made statements and identified the brothers from photographs. The Commonwealth then charged Harris with attempted murder, aggravated assault, and other related charges.

The complainant did not appear for multiple listings of the preliminary hearing. The Commonwealth proceeded with only the testimony of the responding officer as well as that of a detective. The detective also confirmed the complainant’s hearsay identification. The defendant objected to the hearsay, but the Municipal Court judge held the case for court.

The defendant filed a motion to quash, arguing that the Commonwealth’s case against him was based solely on hearsay and thus insufficient to establish his identity as the perpetrator. The Common Pleas Judge held a hearing on the motion to quash. She quashed the attempted murder charge but upheld the remaining charges. At the time. the Superior Court had ruled in Ricker and McClelland that the Commonwealth could establish a prima facie case at a preliminary hearing using hearsay alone. While the case was pending, however, the Pennsylvania Supreme Court overruled those cases in Commonwealth v. McClelland. Following the Supreme Court's decision in McClelland, the defendant filed a motion to reconsider. The trial judge granted the motion and dismissed all of the charges against him because the Commonwealth relied entirely on hearsay to prove his identity as the shooter.

The Commonwealth appealed, and the Superior Court affirmed the trial court’s decision. The Pennsylvania Superior Court emphasized that all material elements of a crime, including the defendant's identity, must be proven through by non-hearsay evidence to satisfy the requirements of due process which apply to a preliminary hearing.

The Supreme Court’s Decision

The Commonwealth appealed again, seeking review in the Pennsylvania Supreme Court. The Pennsylvania Supreme Court granted allocatur, heard the appeal, and ultimately affirmed. The Court ruled that Rule 542(E) does not permit the use of hearsay alone to establish a defendant’s identity. The Court emphasized the distinction between the elements of a crime and the identification of the defendant, holding that the latter cannot be proven solely through hearsay. Therefore, the Commonwealth must introduce some form of non-hearsay or admissible hearsay evidence to establish a defendant’s identity at a preliminary hearing. The Court also suggested in a footnote that the Commonwealth may be able to instead use an indicting grand jury in cases involving witness intimidation, although whether the Commonwealth may rely entirely on hearsay at an indicting grand jury is potentially an open question.

The Takeaway

Ultimately, Rule 542 is a mess. It states that the Commonwealth may use hearsay to establish any element of an offense at a preliminary hearing. At the same time, the Supreme Court’s precedent limits the Commonwealth’s ability to do so as the Supreme Court has now held that a defendant may not be held for court based on hearsay alone or held for court based on an identification that is entirely made up of hearsay. Certain types of hearsay are clearly admissible. For example, ownership and non-permission testimony, lab reports, and the testimony of other narcotics officers during a narcotics surveillance generally comes in. But the Superior Court’s recent case holding that the out-of-court statement of a confidential informant that the defendant sold the drugs in question is admissible is probably effectively overruled by this case. In an ideal world, the Court would draft a clearer rule that would continue to protect a defendant’s due process rights. For now, the situation will likely remain fuzzy, and the amount of hearsay allowed at a preliminary hearing will depend heavily on the judge hearing the case. The appellate courts have held that a preliminary hearing based entirely on hearsay is not acceptable, but they have not really clarified how much hearsay is too much.

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Criminal Defense 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 and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and 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.

Zak Goldstein 5/11/24 Zak Goldstein 5/11/24

Not Guilty: Attorney Goldstein Wins Another Felon in Possession of Firearm Trial

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire, recently obtained a full acquittal for a client who was charged with various firearms offenses in Philadelphia. In the case of Commonwealth v. E.J., Attorney Goldstein was able to obtain the acquittal following a bench trial in the Court of Common Pleas.

E.J. was charged with numerous violations of the uniform firearms act (VUFA) including carrying a concealed firearm without a license in violation of 18 Pa.C.S. § 6106, carrying a firearm on the streets of Philadelphia in violation of 18 Pa.C.S. § 6108, and prohibited person in possession of a firearm in violation of 18 Pa.C.S. § 6105.

The police claimed that they received a radio call for gun shots. While they were investigating the source of that call, they received a second call for a person screaming that they had been shot. A nearby officer quickly responded to the scene and found E.J. Unfortunately, E.J. was near a gun, and the police eventually recovered the gun and charged him with illegal possession of the gun because he did not have a license to carry and he also had a record which made it illegal for him to have a gun.

E.J. retained Attorney Goldstein and decided to proceed by way of bench trial in the Philadelphia Court of Common Pleas. At trial, the prosecution called the responding officer who arrested E.J. to testify. That officer testified that he arrived on the scene in response to the radio call, and he saw E.J. bending over and rummaging around in between two garbage bags. E.J. then popped up and began walking towards him yelling that he had been shot in the head. The officer could see that E.J. had in fact been shot in the head as E.J. had a bullet wound and was bleeding. The officer frisked E.J. and did not find anything, but he found a gun in between the garbage bags. Other officers transported E.J. to the hospital, where he fortunately made a full recovery, and the responding officer recovered the gun from in between the garbage bags.

The officer testified that in his opinion, it looked like the gun had been recently placed there because it had droplets of what appeared to be blood on it. It had been raining recently, but the gun was not very wet. Photos of the gun, however, showed that it did have water on it, but the prosecution tried to argued that the water could have rolled off of the garbage bags. The officer also testified that no one else was around, so the prosecution argued that E.J. must have put the gun there.

Attorney Goldstein cross-examined the officer extensively on the fact that the officer did not actually see or hear E.J. holding the gun or dropping it onto the ground, the photos of the gun showed that it in fact had water on it, the Commonwealth had not done any testing for DNA, the Commonwealth had not confirmed that the blood on the gun came from E.J. or that it was even definitely blood rather than dirt, and that obviously, E.J. did not shoot himself in the back of the head. Given that he did not shoot himself, someone else must have also been out there with a gun even if the officer did not see who that person was. Thus, although it was certainly suspicious for E.J. to be near the gun, that mere proximity was not enough to show constructive possession of the firearm given all of the circumstances. Attorney Goldstein argued that the police were missing the first half of the story. It was just as likely that someone had shot E.J. and thrown the gun there after the shooting or that someone else had had the gun and tossed it there while fleeing from the shooting knowing that the police would be on the way shortly. E.J. could have then stumbled over in a daze from being shot to see what it was or to pick it up and defend himself if the shooter returned.

The Common Pleas judge deliberated for about two hours and then acquitted E.J. E.J. was free to leave, and he will be eligible to have the charges expunged. Had he been convicted, he would have been facing a lengthy state prison sentence under the state guidelines given the prior convictions that made him ineligible to possess a firearm. Fortunately, he made the right decision in retaining an attorney who was not afraid to try and win the case.

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Zak Goldstein 5/9/24 Zak Goldstein 5/9/24

PA Superior Court Finds Yet Another Lawyer Ineffective for Failing to Present Character Evidence at Trial

The Pennsylvania Superior Court has decided the case of Commonwealth v. Alceus, finding trial counsel ineffective and granting the defendant a new trial because trial counsel failed to call character witnesses to testify to the defendant’s excellent reputation in the community for non-violence. The law is clear in Pennsylvania: trial attorneys must investigate and call character witnesses to testify where such witnesses are available unless the attorney has a legitimate, genuinely strategic reason for deciding not to do so. Particularly in he-said/she-said assault and rape cases, the appellate courts are very likely to find counsel who fails to call character witnesses ineffective and reverse criminal convictions.

The Facts of Alceus

The defendant in this case was convicted of aggravated assault and endangering the welfare of child. The complainant, his wife, was pregnant at the time of the incident. She claimed that she tried to leave him. During that process, she was staying at her mother’s apartment with her five children when the defendant broke into the apartment, verbally and physically assaulted her in front of the children, and inflicted severe injuries. She went to the hospital after he left.

She received medical treatment at the hospital, and the hospital called the police. The police interviewed one of the older children who did not disclose seeing any violence. Nonetheless, the police arrested the defendant, and the Commonwealth charged him with aggravated assault and related charges. The complainant testified at trial, and the Commonwealth introduced the testimony of police and medical witnesses as well as medical records which corroborated her claims.

The jury convicted the defendant of multiple counts, and the trial court sentenced him to seven to fourteen years of incarceration followed by six years of probation. Notably, the Commonwealth presented no other eyewitnesses to the alleged assault. The defendant testified and denied having committed it. He claimed that he had been at the casino with his friend and had not seen the complainant that evening. He did not know who had injured her. None of the children testified, so although the complainant in fact had injuries, this was a he-said/she-said case in which the complainant said the defendant assaulted her and the defendant said he did not assault her. The defense attorney did not call character witnesses to testify to his client’s reputation for non-violence even though the defendant had no violent convictions.

The PCRA Petition

The defendant appealed his conviction to the Pennsylvania Superior Court, and the Superior Court denied the appeal. He then filed a Post-Conviction Relief Act Petition in the trial court. In the petition, he alleged that he received the ineffective assistance of counsel because his trial lawyer failed to speak with and call witnesses to testify who would have testified that he had an excellent reputation in the community for being a peaceful, non-violent person. He argued that this evidence would have raised a reasonable doubt given the lack of any evidence other than the testimony of the complainant that he was in fact the one who committed the assault, assuming someone committed an assault.

The PCRA court held an evidentiary hearing. Trial counsel testified that he did not investigate whether his client could have presented character witnesses because he thought character testimony would confuse the jury. He wanted the jury to instead focus on the lack of investigation by the police and the fact that one of the children had told the police that nothing happened when interviewed. Obviously, calling the character witnesses to testify would not have prevented counsel from doing any of this. The potential witnesses also testified at the hearing that the defendant had an excellent reputation for non-violence and that they would have been willing to testify at trial but the lawyer did not ask them to. The defendant also testified that he asked his lawyer to call the witnesses. He was surprised when the lawyer failed to do so.

The PCRA court denied the petition. It found that trial counsel’s decision not to present character witnesses was somehow strategic and that the proposed character witnesses were not credible because their testimony was not consistent with the evidence presented at trial. The defendant appealed.

The Superior Court’s Ruling

The Superior Court reversed. It cited a long line of case law dating back more than a century to show that character witness is extremely important. Character evidence alone may be the basis for a reasonable doubt, and a defendant who presents character evidence is entitled to jury instruction informing the jury that character evidence may provide reasonable doubt even if the other evidence is believed and compelling. Trial counsel’s claimed strategy made no sense; if his goal was to show that the complainant was lying, then presenting character witnesses on the defendant’s behalf would have only strengthened that claim rather than confusing the jury. And the PCRA court failed to provide any explanation for why it believed the character witnesses were not credible. The fact that the Commonwealth presented evidence at trial had absolutely no bearing on whether the witnesses were credible as to the defendant’s reputation. Of course, the Commonwealth always presents evidence at trial. The evidence may not be true or compelling, but if the Commonwealth had no evidence, there would be no trial. The fact that the Commonwealth has evidence makes presenting character witnesses even more important.

This case illustrates the requirement that defense attorneys must present character evidence at trial for clients who have no criminal record or criminal records which are not relevant to the charges at issue in the case unless they have a very good reason for not doing so. Such reasons could include the possibility that the witnesses could be impeached with a relevant criminal record. For example, a defendant charged with a violent crime who offers character evidence of a reputation for non-violence could see the witnesses impeached with evidence of his prior violent convictions. But non-violent convictions would not be relevant. Further, trial counsel would not be ineffective for failing to call witnesses if the witnesses do not exist and no one is willing to testify on the defendant’s behalf or if the Commonwealth may be able to present credible rebuttal witnesses who would testify that the defendant actually has a bad reputation. Whether the Commonwealth may call police officers to do so, however, is debatable and should be challenged.

Each case is different, but in most cases where the defendant has no criminal history or no history of crimes involving the relevant character trait, the defense attorney should call character witnesses and is likely providing the ineffective assistance of counsel if they fail to do so. It is also clear that under Pennsylvania law, character witnesses may be only be impeached with evidence of criminal convictions for the relevant trait; they may not be impeached with arrests that did not end in convictions or uncharged bad conduct. Excuses such as local jurors do not understand or value character evidence, character evidence is confusing, or family and friends are not valuable character witnesses will not protect an attorney from ineffective assistance claims.

In this case, the Superior Court found the defendant suffered prejudice from trial counsel’s failure to call character witnesses. This was a he-said/she-said case where no one else testified that the defendant committed the crimes charged. Had the witnesses testified on his behalf, the verdict might have been different. Accordingly, the Superior Court granted him a new trial.

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Zak Goldstein 5/4/24 Zak Goldstein 5/4/24

PA Superior Court Clarifies Procedures for Challenging Time Credit Calculations

Criminal Defense Lawyer Zak Goldstein — Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court has decided the case of Commonwealth v. Wheeler, holding that the trial court properly denied Wheeler’s motion for time credit. The case did not really change any of the rules around challenging a time credit calculation, but it provides a helpful explanation on the proper motions and forums in which time credit challenges should be brought.

The Facts of Wheeler

Wheeler was convicted of multiple drug-related offenses, including conspiracy to possess with intent to deliver (“PWID”) and criminal use of a communication facility (“CUCF”). He received concurrent state sentences on three different docket numbers. The trial court ordered that he receive credit of time served but did not specify how much credit he should receive on each case. The Department of Corrections put all of his time credit on one docket and found that he had no time credit for the other two, so he filed a motion in the trial court asking the trial judge to give him time credit on all of the cases. The trial court denied the motion.

The Superior Court Appeal

Wheeler appealed to the Pennsylvania Superior Court from the order denying his pro se motion to modify the credit for time served. He argued that there was an error in how the Department of Corrections (DOC) calculated his credited time. The Superior Court, however, disagreed. It denied the appeal, holding that the trial court properly awarded credit for time served at the time of sentencing, and that Wheeler’s challenge pertained to the DOC's application of this credit, not to the legality of the sentence itself. Accordingly, the issue did not fall under the PCRA or the trial court’s jurisdiction.

The Superior Court explained that there are three types of time credit issues:

1) The trial judge’s order is correct, but the Department of Corrections has miscalculated the time credit. In this situation, an inmate should first challenge the time credit calculation through internal procedures and if that is unsuccessful, file a lawsuit against the DOC in the Commonwealth Court.

2) If the sentence is ambiguous or unclear, then the petitioner should file a motion for habeas corpus in the trial court. This type of motion does not fall under the Post-Conviction Relief Act, and so a petitioner may be able to file this type of motion even if the deadlines have expired or the petitioner has already filed a prior PCRA petition which was denied.

3) The sentence or the time credit order in the judgment of sentence is illegal. In this situation, there would be a due process violation, and the petitioner should file a PCRA petition within one year of the judgment of sentence becoming final. If the petitioner fails to file within a year or has previously litigated a PCRA petition, the petitioner may not be eligible for relief.

In this case, the Superior Court recognized that the trial court had properly ordered that the defendant receive credit for time served. The defendant’s complaint was really with the DOC’s calculation of that time credit, so the defendant should have filed suit in Commonwealth Court rather than filing a motion in the trial court. Therefore, the Superior Court affirmed. Wheeler may still be able to file in Commonwealth Court, although filing in Commonwealth Court is generally more complicated than submitting a motion in the Court of Common Pleas.

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