Philadelphia Criminal Defense Blog

Zak Goldstein 1/30/25 Zak Goldstein 1/30/25

PA Superior Court: Confessions Made to Police Officers at Church Do Not Qualify for Clergy-Penitent Privilege

Criminal Defense Attorney Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Ross, holding that the trial court properly denied the defendant’s motion to suppress a confession made to a police officer because the clergy-penitent privilege did not apply even though the defendant knew the officer from church.

The Facts of Ross

The defendant was convicted of rape, unlawful contact with a minor, endangering the welfare of children, corruption of minors, indecent assault, and incest following a 2020 jury trial in the Philadelphia Court of Common Pleas. The case stemmed from an incident that took place on August 13, 2014. The defendant allegedly entered the bedroom of his 15-year-old foster daughter and sexually assaulted her. The defendant’s adult daughter saw him leaving the complainant’s room and alerted the defendant’s wife. She immediately called the police and kicked him out of the house.

After being expelled from the home, the defendant sought guidance from his pastor. His pastor was a longtime friend and fellow minister. After the defendant told the pastor that he fondled the complainant, the pastor then contacted a Philadelphia Police Officer who was also a pastor and co-host of a religious radio show and asked the officer to meet with the defendant at their church. The officer went to the church, and the defendant admitted to fondling the complainant to the officer. The officer then drove the defendant to the Special Victims Unit (SVU) to turn himself in.

The defendant was arrested and subsequently charged with multiple sexual offenses. He moved to suppress the statement to his pastor as well as the statement to the officer. The trial court excluded the statement which was made to the pastor under the clergy-penitent privilege, but it denied the motion with respect to the officer. The court found that the officer was acting as an officer and not as a pastor, and so the defendant was not entitled to the clergy-penitent privilege.

The defendant proceeded by way of jury trial, and the jury convicted him. The trial court sentenced him to 27.5 - 55 years’ incarceration and required him to register as a sex offender for life under SORNA. The defendant appealed to the Pennsylvania Superior Court.

The Superior Court Appeal

The defendant appealed his conviction, arguing that:

His statements to the police officer should have been suppressed because he made them while he was in custody and he had not received his Miranda warnings.
His confession to the officer should have been excluded under the clergy privilege because the officer was off-duty and present in the church in a religious capacity rather than acting as a police officer.

The Superior Court’s Ruling

The Superior Court rejected both claims and affirmed the conviction.

Miranda Violation Claim Denied: The Superior Court found that the defendant was not in custody when he made his statements to the officer. His meeting with the officer was voluntary, and he agreed to turn himself in. The officer was off-duty and never arrested the defendant. Instead, the pastor called the officer, and the defendant agreed to speak with him at the church. The police do not have to give Miranda warnings to someone who is not in custody because Miranda only applies to custodial interrogations. The defendant was not in custody at the church when he made the statement to the officer, so the officer did not have to provide Miranda warnings in order for the statement to be admissible at trial. The Court also noted that although the defendant filed a motion to suppress based on the lack of Miranda warnings, his attorney did not really pursue that claim at the motions hearing.
Clergy Privilege Claim Rejected: The Court agreed that the defendant’s initial conversation with his pastor was privileged, but it ruled that the privilege did not extend to statements made in the presence of the officer. The Court found that the defendant viewed the officer as a trusted police officer or friend, not a spiritual advisor, and sought his assistance in surrendering to authorities. The Court reached this conclusion even though the officer was also a pastor. It concluded that the officer was not acting as the defendant’s pastor as the time but instead there to help him turn himself in.

The clergy-penitent privilege is codified under Pennsylvania law. It provides:

23 Pa.C.S. § 5943. Confidential communications to clergymen.
No clergyman, priest, rabbi or minister of the gospel of any regularly established church or religious organization, except clergymen or ministers, who are self-ordained or who are members of religious organizations in which members other than the leader thereof are deemed clergymen or ministers, who while in the course of his duties has acquired information from any person secretly and in confidence shall be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding, trial or investigation before any government unit.

The problem for the defendant here is that both the trial court and Superior Court found that the officer was not acting in his course of duties as a pastor at the time of the confession. Therefore, the privilege did not apply.

The Takeaway

Ultimately, the result here is not particularly surprising. Non-custodial, voluntary confessions to police officers are typically going to be admissible in court even if the police officer knows the defendant from church. This case, however, highlights that Miranda rights only apply to custodial interrogations. If the defendant is not in custody and interrogated, then they are not entitled to Miranda warnings. Further, the remedy for a Miranda violation is the suppression of the statement; it is not necessarily the dismissal of the case. Additionally, privileges are important, but they only apply in limited circumstances. The clergy-penitent privilege does not apply unless the person is acting within the scope of their religious duties, and here, the officer was obviously a police officer rather than the defendant’s pastor. The privilege also does not apply when a third party is present. Therefore, the Superior Court denied the appeal.

Criminal Defense Lawyer Zak T. Goldstein, Esquire

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Zak Goldstein 1/29/25 Zak Goldstein 1/29/25

PA Superior Court: Conditions Violated Must Actually Be Part of County Probation or Parole Sentence for Defendant to Be Found in Violation of Probation

The Pennsylvania Superior Court has decided the case of Commonwealth v. Baldassano, 2025 PA Super 26, holding that the trial court improperly found the defendant in violation of county parole conditions which were never part of the defendant’s sentence. The Superior Court therefore vacated the defendant’s incarceration sentence and released him.

The Facts of Baldassano

The defendant was convicted of terroristic threats, stalking, and harassment after years of allegedly harassing a former college acquaintance. The charges stemmed from a pattern of anonymous phone calls, social media impersonation, and threats against the complainant and her family. Following a jury trial, he was found guilty and sentenced to a term of thirty days to four years’ incarceration with immediate parole at his minimum sentence along with certain conditions.

The parole conditions required:

A drug and alcohol evaluation and compliance with any treatment recommendations.
Continued mental health treatment.
Two years of active supervision followed by two years of inactive supervision, during which the court specifically ordered that he was only required to avoid contact with the victim and was not required to comply with any other probation department rules and regulations.

Parole Violation Allegation and Revocation

While the defendant was serving the “inactive supervision” portion of the county parole, the Lebanon County Department of Probation sought to revoke his parole, alleging:

Positive drug tests and possession of controlled substances.
A new criminal arrest.

At the defendant’s Gagnon II hearing, the defense attorney moved to dismiss the probation violation, arguing that neither condition applied to the defendant given the terms of the inactive supervision. The trial court dismissed the drug-related violation but revoked the defendant’s parole based solely on the new criminal charge. The trial court recommitted the defendant to serve the balance of his original sentence with parole eligibility after eighteen months. The defendant appealed.

The Superior Court Appeal

On appeal, the Pennsylvania Superior Court reversed the trial court’s order and found that the trial court erred in revoking parole. The Superior Court concluded that per the specific terms of the trial court’s sentencing order, the defendant was simply not subject to any conditions other than the requirement that he not have contact with the complainant. The Court found:

By the explicit terms of the sentencing order, after two years, the defendant was not subject to the normal county probation department rules and regulations, which included the requirement not to commit new offenses.
While committing a new crime typically warrants parole revocation in almost every case, it must be based on an actual parole condition to which the defendant was subject. Here, his only enforceable condition in the last two years of the sentence was to avoid contact with the complainant.
Because the Commonwealth and probation department had only pursued revocation based on new charges (and not a violation of any of the three enumerated parole conditions that applied during his sentence), the trial court lacked legal grounds to revoke his parole even though new arrests are usually the basis for probation or parole revocation.

The Superior Court therefore vacated the order sentencing the defendant to prison and remanded for further proceedings.

The Takeaway

In many cases, it is common for defense counsel to concede a probation or parole violation and focus on obtaining a light sentence such as more probation or parole or a short period of incarceration. It is important, however, to actually read the judgment of sentence and sentencing transcript in order to make sure that any alleged conditions of supervision are actually part of the sentence. If the probation or parole department has moved to hold a defendant in violation of a condition that does not exist, then the defendant should not be found in violation.

In order for there to be a probation violation, the conditions which were allegedly violated must have been explicitly stated on the record at the time of sentencing. They cannot be expanded unilaterally by probation officers beyond what the sentencing judge ordered without notice and a hearing. Notably, this rule does not always apply - defendants on state parole and state supervised probation may have fewer protections than defendants on county probation or parole because certain state statutes and regulations allow the parole board to impose some conditions of supervision.

Even serious new charges cannot justify revocation if the probation or parole sentence specifically limits the conditions of probation or parole such that it does not require the probationer to avoid getting arrested. This is an unusual case because this type of probation or parole is rare, but it is still important for the defense attorney to carefully review the record when representing someone who has been charged with a violation of probation or parole.

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

Zak Goldstein 1/9/25 Zak Goldstein 1/9/25

PA Superior Court: Police Need a Good Reason for a K9 Sniff, and the Commonwealth Must Actually Prove Inevitable Discovery with Evidence

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the cases of Commonwealth v. Brinson and Commonwealth v. Flamer, holding that nervousness alone does not justify prolonging a traffic stop to bring a drug dog to the scene to have the dog smell the car for drugs. The Court also held that the mere fact that the police could have towed the car did not establish that the police would have inevitably discovered the contraband as the Commonwealth introduced no evidence or testimony that the police in fact would have towed the car and conducted an inventory search.

The Facts of the Case

A Philadelphia police officer conducted a traffic stop of a car after seeing the car fail to stop at a stop sign. Flamer was driving, and Brinson was in the passenger seat. During the stop, the officer felt that both men seemed nervous. Therefore, he called for a K9 unit. The dog alerted to the presence of narcotics, leading to a search of the car. Officers searched the car and discovered a firearm with an altered serial number and oxycodone pills.

The Commonwealth charged Brinson and Flamer with various offenses, including illegal possession of a firearm (VUFA) and controlled substances. Both defendants filed motions to suppress the evidence, arguing the stop was unlawfully prolonged without sufficient reasonable suspicion. The trial court granted the motion to suppress, finding that the police did not have reasonable suspicion to detain the defendants and extend the stop until a drug dog arrived. The court also found that the Commonwealth failed to show that the police would have inevitably discovered the contraband by towing the vehicle and conducting an inventory search. The prosecution appealed.

The Superior Court Appeal

The Superior Court affirmed. It agreed with the trial court on both issues, finding that the police did not have reasonable suspicion and that the Commonwealth failed to prove inevitable discovery with actual testimony or evidence. The Court addressed both issues:

Prolonged Traffic Stop:
- The Court held that the stop, which extended 10–15 minutes before the K-9 unit was summoned, exceeded its permissible scope. The officer lacked specific and articulable facts (reasonable suspicion) to justify extending the stop beyond its original purpose of addressing a traffic violation.
- Nervous behavior alone was insufficient to establish the necessary reasonable suspicion for detaining the defendants, extending the stop, and bringing a dog to the scene to conduct the search. The officer claimed he smelled marijuana, as well, but he did not smell the marijuana until later in the stop. Therefore, the officer’s detection of the marijuana odor occurred after the stop should have reasonably concluded, further undermining the justification for the K-9 search.
Inevitable Discovery Doctrine:
- The Commonwealth argued that the evidence would have been discovered during an inventory search following impoundment due to lack of insurance. However, the court found this exception inapplicable. The Commonwealth failed to establish that the police unequivocally would have towed the car and found the contraband. Instead, the Commonwealth showed only that the police could have towed the car, which was not enough. The inevitable discovery doctrine is very limited under Pennsylvania law and rarely operates other excuse the failure to comply with the warrant requirement. The police testimony established that towing decisions were discretionary, and the officer failed to establish or present a clear policy regarding inventory searches. The absence of a concrete policy establishing that the car would have in fact been towed defeated the inevitable discovery claim.

The court reiterated that police must demonstrate reasonable suspicion based on a totality of circumstances and that any extension of a traffic stop must align with the mission of the stop. This is a great decision for privacy rights in terms of limiting the inevitable discovery doctrine. It is not enough to show that the police could have eventually conducted a legal search - the Commonwealth has to show that an eventual legal search was a true inevitability, not merely that it could have happened even had the police not violated the defendant’s rights by conducting an illegal search.

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

Zak-Goldstein-Defense-Attorney — Goldstein Mehta LLC Criminal Defense Attorneys

Zak Goldstein 1/6/25 Zak Goldstein 1/6/25

PA Superior Court: Forwarded Emails May Qualify as Duplicates for Best Evidence Rule

The Pennsylvania Superior Court has decided the case of Commonwealth v. Fischer, holding that the trial court properly admitted forwarded emails as duplicates under the best evidence rule even though forwarded emails can easily be tampered with or forged. The Court held that the best evidence rule did not prohibit the admission of the emails.

The Facts of the Case

The defendant and the complainant, his ex-fiancée, were involved in a ten-year relationship that ended prior to August 2020. They shared a child, who was two years old at the time of the events in question. Between August and September 2020, the defendant allegedly engaged in repeated communications directed toward the complainant. The communications involved making phone calls to the complainant, sending text messages and emails, and making social media posts tagging the complainant. On one occasion, the defendant made 100 calls to the complainant in a single day, which seems excessive.

The communications included threats and manipulative language. For example, one email stated: “If you don’t ensure our daughter is reunited with me this evening, your life will change forever tomorrow, as will your mother’s. Tread carefully. You’re being watched.”

At trial, the Commonwealth relied on forwarded emails from the complainant. The complainant had forwarded the emails from one account to another and then printed out the emails and given them to the police. The prosecution introduced them into evidence as evidence of the defendant’s harassing conduct.

The Commonwealth charged the defendant with three counts of harassment and one count of stalking. A jury convicted him of two harassment charges but acquitted him of stalking and one of the three harassments counts. The trial court sentenced the defendant to two years of probation with restrictive conditions. The defendant appealed, arguing that the trial court erred in admitting the forwarded emails because they should not have been admissible under the Best Evidence Rule.

The Superior Court Appeal

The defendant argued that the forwarded emails were not admissible for three reasons.

They were not “originals” or “duplicates” under the Pennsylvania Rules of Evidence.
The forwarding process allowed for potential manipulation of the content.
Omitted portions of the email correspondence removed necessary context from the evidence.

The trial court overruled these objections, admitting the emails as “duplicates” under Pennsylvania Rule of Evidence 1001(e), which defines a duplicate as a copy produced through an electronic or other reliable process that accurately reproduces the original.

The Superior Court affirmed the trial court’s decision, holding that the forwarded emails were properly admitted as duplicates. The Court’s reasoning was based on the following:

Duplicate Status: The Court determined that the forwarded emails met the definition of duplicates because they were created through an electronic process that accurately reproduced the original content, including the sender’s and recipient’s email addresses, timestamps, and subject lines. The forwarded emails contained more detailed metadata than the screenshots at issue in Commonwealth v. Talley, a leading case on the Best Evidence Rule.
Authenticity: The defendant failed to raise specific challenges to the authenticity of the emails. The complainant authenticated the forwarded emails through her testimony, testifying that they were identical to the messages she received from the defendant. Thus, this claim was waived, and it would have been rejected anyway because the complainant could authenticate the emails as the emails that she received.
Fairness: The Court rejected the defendant’s argument that the forwarded emails were unfairly admitted because other communications were omitted. The Court noted that the defense could have addressed these omissions through cross-examination or by introducing additional evidence.
Precedent: The Court relied on the Pennsylvania Supreme Court’s decision in Talley, which held that screenshots of text messages are admissible as duplicates under the Best Evidence Rule if created through a reliable process and authenticated at trial.

Ultimately, the Superior Court held that the forwarded-and-then-printed emails were duplicates of the originals and that forwarding an email and then printing it was basically the same thing as screenshooting it. In Talley, the Supreme Court ruled that screenshots of text messages were admissible as duplicates.

The problem is that screenshotting in fact creates a duplicate, whereas a forwarded email is not the exact same thing as the original email. It is easy for someone to change the text in the forwarded email, and one of the judges issued a concurrence suggesting that she would not have allowed for the admission of the emails because the risk of manipulation was too high.

In this case, however, the Court ruled that the emails were properly admitted and that any challenge to whether they were real should be decided by the fact-finder rather than as a challenge to their admissibility. The defense was free to cross-examine the complainant on the fact that she did not have the original emails available and then argue that they were fake. The problem with this analysis is that judges and juries are often too quick to rely on electronic evidence like text messages and emails that looks real even when it is not. It takes only a matter of seconds to edit or forge a text message or email, and unless someone is particularly savvy with technology, they may not realize just how easy it is to forge this type of evidence. Further, it is usually not particularly difficult to obtain actual records from the service provider to show that the screenshots or forwarded messages are real. Unfortunately, the courts have generally rejected the idea that the prosecution should have to obtain solid proof that the images are real, instead shifting the burden to the defense to prove that they are fake. Hopefully, the defendant will seek further review in this case. The appellate courts may also begin to reevaluate the low standard for the admissibility of electronic evidence as it becomes clearer that this type of evidence can be fabricated in a matter of seconds.

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

Goldstein Mehta LLC Criminal Defense Attorneys