Philadelphia Criminal Defense Blog

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

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

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.

Facing criminal charges or appealing a criminal case in Pennsylvania?

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.

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Zak Goldstein 4/13/24 Zak Goldstein 4/13/24

PA Superior Court: Defendant May Be Ordered to Remove Non-Prescription Glasses During Trial

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth. v. Ellis, holding that the trial court did not violate the defendant’s Fifth Amendment rights by ordering him to remove his non-prescription glasses during trial. The Court found that the trial court’s order did not require the defendant to testify or give evidence against himself. The Superior Court also found sufficient evidence to affirm the conviction for murder.

The Facts of Ellis

In Ellis, the defendant was charged with attempting to rob a gas station in York, Pennsylvania. Prosecutors alleged that he shot and killed the gas station attendant during the attempted robbery. The shooting was captured by the gas station’s surveillance cameras, but the footage was too blurry to clearly identify the defendant from his face. Two ex-girlfriends, however, testified that they recognized the person on the camera footage as the defendant based on his distinctive coat, sneakers, and build. He also got rid of the clothes and the murder weapon by throwing those items in the river, he shaved his facial hair, and he attempted to wear non-prescription glasses at trial. The jury could not reach a verdict at the first trial, so the trial resulted in a mistrial. Prosecutors retried the defendant, and he was convicted.

During the second trial, the defendant attempted to wear non-prescription glasses. The trial court ordered him to remove the glasses so the jurors could better see his face, and the defense objected. The defense argued that requiring him to remove the glasses was the same as requiring him to testify against himself or give evidence against himself in violation of the Fifth Amendment. The trial court overruled the objection and required him to remove his glasses. The jury ultimately convicted, and the defendant appealed.

The Superior Court’s Ruling

The Superior Court affirmed the conviction. First, with respect to the sufficiency of the evidence claim, the Court concluded that the combination of surveillance footage, witness testimony, and Ellis’s own actions in getting rid of his clothes and gun after the murder established guilt beyond a reasonable doubt. Second, with respect to the Fifth Amendment issue, the court found that the removal of the glasses did not constitute testimonial evidence and thus did not violate his rights. The Court reasoned that that physical or demonstrative evidence, such as appearance alterations, did not fall under the Fifth Amendment’s protection against self-incrimination. The defendant was not required to testify or say anything to incriminate himself; he was only required to show the jury his face without fake glasses on it. The Court found that this action was not protected by the Fifth Amendment.

The Takeaway

This case is not particularly controversial, but it does show the impact that getting rid of evidence or a defendant attempting to change their appearance can have at trial. Getting rid of clothing and a weapon made the defendant look particularly guilty, and insisting on wearing fake glasses likely did not help his case, either. In these types of cases, the Commonwealth can actually seek a jury instruction under which the trial judge will instruct the jury that the destruction of evidence or decision to change one’s appearance can be considered as evidence of guilt against the defendant. Further, the Fifth Amendment generally only protects a defendant from having to speak with the police or testify; it does not allow a defendant to shield their appearance from the view of the jurors.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

Zak Goldstein 3/21/24 Zak Goldstein 3/21/24

PA Superior Court: Police Do Not Need a Search Warrant to Get Parolee’s GPS Monitoring Data

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Rosendary, holding that the police do not need a search warrant to get a parolee’s GPS monitoring data from parole agents so long as the parolee was already on GPS monitoring for reasons unrelated to the investigation of the new crime. In this case, the defendant’s GPS monitor put him at the scene of the crime, but the police had obtained that data without getting a search warrant for it. The Superior Court, however, rejected Rosendary’s arguments that the evidence should be suppressed, finding that police do not need a search warrant to get this type of data from parole agents and that the police did not use the parole agents as “stalking horses” for the police investigation.

The Facts of Rosendary

The defendant was on parole for a robbery conviction. As part of his parole, he was eventually placed on GPS monitoring. He signed a consent form agreeing to the monitoring. He did not have much of a choice, though, as the alternative to GPS monitoring would have been incarceration. The police subsequently arrested him and charged him with another robbery. At his trial, the Commonwealth introduced evidence from his parole GPS ankle monitor which incriminated him by putting him at the crime scene.

Prior to trial, the defendant moved to suppress the GPS data. He argued that the police should have obtained a search warrant in order to get the GPS information from his parole agent and that alternatively, the parole agent had worked as a “stalking horse” for the police in order to evade the warrant requirement. The trial court denied the motion to suppress, and the defendant appealed.

The Superior Court’s Ruling

The Pennsylvania Superior Court denied the appeal. First, it rejected the defendant’s argument that the police violated the Fourth Amendment’s warrant requirement by getting the GPS data without a search warrant. Although the police ordinarily need a search warrant in order to get GPS location data for a suspect, the Court held that they did not need to get a search warrant in this case. Specifically, the defendant had a diminished expectation of privacy in his GPS data because he was on parole, he had agreed to wear the monitor in lieu of incarceration, and he knew that the data would be shared with his parole agent. Thus, he had no reasonable expectation that the data would be kept private, and he had agreed to wear the ankle monitor. Therefore, law enforcement did not need a search warrant to get the data. Further, the parole agent had not shared unlimited data with the police. Instead, the parole agent had shared only the location data for where the defendant was at the time of his suspected involvement in the robbery. The Court found that this was not a significant intrusion into his privacy because the data shared was limited in time and scope.

The Court also rejected the defendant’s stalking horse challenge. Under the stalking horse doctrine, the police may not take advantage of a suspect’s status as a probationer or parolee to avoid the warrant requirement. In other words, the police may not ask probation or parole to conduct a warrantless search for the purpose of finding evidence related to a police investigation. Instead, the police should get a warrant. For example, if a defendant could show that the police had asked a probation officer to conduct a search of the defendant’s house to look for evidence because the police suspected the defendant of a crime, then that search could potentially violate the stalking horse doctrine and require suppression of the evidence. Here, however, the defendant introduced no evidence that the police had directed the search or directed parole to put the defendant on GPS monitoring. He was already on GPS monitoring, and the police simply requested the data from his parole agent. As he did not have a reasonable expectation of privacy in the data, the parole agent was free to share this information with the police.

The Takeaway

This result is not particularly surprising. It is usually not possible to suppress evidence that was shared with the public as suppression requires a reasonable expectation of privacy. A probationer or parolee who is subject to GPS monitoring has no real reason to believe that the evidence would be kept private, so courts are generally not going to suppress it.

As a general rule, it’s best not to commit new crimes while wearing a probation or parole GPS tracking device. The evidence will likely be admissible in court, and the police will not be required to get a search warrant for the evidence. There is still the possibility of challenging the collection of this type of evidence should the defendant be able to show that probation or parole improperly conducted a search at the request of the police and that the police may not have otherwise had the authority to conduct such a search, but that type of violation is often difficult to prove.

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

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 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 12/20/23 Zak Goldstein 12/20/23

PA Superior Court: Lawyer Ineffective in Failing to Move for Severance of Unrelated Cases

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Hamilton, finding the defendant’s trial attorney provided the ineffective assistance of counsel in failing to object to the Commonwealth’s motion to join the defendant’s two unrelated cases into one trial. The defense attorney should have moved to sever the charges. Had he done so, severance would have been granted, and the defendant would have been more likely to win. Therefore, the Superior Court vacated the conviction and remanded for a new trial.

The Facts of Hamilton

Three men named Cutshall, Barger, and Heasley conspired to rob the defendant for a debt he owed to Heasley. They lured the defendant into a car under the guise of giving him a ride to purchase marijuana in another town. The defendant sat as the rear-passenger on the driver’s side. Cutshall sat next to him while Barger drove the car with Heasley in the front passenger seat. The driver pulled the car over so he and the front passenger could go to the bathroom.

The driver and front seat passenger returned to the car. Cutshall then pulled out a BB gun and robbed the defendant. The incident took place at night, so the BB gun looked to be a real gun to the defendant. The defendant complied and handed over his cellphone, wallet, and a small drawstring bag which contained a small amount of marijuana. Cutshall, the backseat passenger, ordered the defendant to get out of the vehicle.

Unbeknownst to the three robbers, the defendant had a real handgun in his waistband. Coincidentally, the defendant had stolen the handgun from an unlocked pickup truck the day before. When he got out of the car, the defendant asked the driver if he knew about the robbery plan and the driver acknowledged he did. The defendant then held open the rear door and fired five shots into Cutshall, the man who robbed him, fatally wounding him in the neck. The defendant then went to the rear of the car and fired more rounds into the car striking Healy, the front seat passenger, once in the shoulder.

The defendant then fled into the woods but later met up with the two remaining men after the driver moved the car to a parking lot of a chiropractic center. By the time the four of them met up, Cutshall, the rear passenger, had died. The defendant stayed in the area even though he knew Heasley had called 911. The Pennsylvania State Police found the four of them in the parking lot.

The Criminal Charges

The Commonwealth charged the defendant under two separate dockets for crimes related to the shooting and for the theft of the handgun from the pickup truck. The Friday before the defendant’s shooting trial, during jury selection, the Commonwealth filed a motion to join the shooting docket and the gun theft docket into one trial, arguing the joinder would not prejudice the defendant, it would promote judicial economy, and it would eliminate the need for separate trials. The defendant’s lawyer did not object.

The trial court therefore granted the motion without objection. The trial lasted for four days. The prosecution called 16 witnesses during the trial, and only two of them testified about the theft. The Commonwealth, however, emphasized the theft heavily in its opening statement. Specifically, the prosecutor repeatedly referred to the defendant as a thief and used the term “stole” or “stolen” 15 times before calling any witnesses. The Commonwealth did not dispute that the defendant was the victim of the robbery plot by Cutshall and the others.

The jury found the defendant not guilty of murder and possession with intent to deliver. The jury found him guilty of two counts each of aggravated assault with a deadly weapon, theft by receiving stolen property, and criminal conspiracy. It also convicted on one count each of aggravated assault, criminal attempt, firearms not to be carried without a license, theft from a motor vehicle, criminal conspiracy, theft by unlawful taking, possession of a small amount of marijuana, possession of drug paraphernalia.

The trial judge sentenced the defendant to an aggregate sentence of 15 to 30 years’ incarceration followed by 37 months of reporting probation. The defendant appealed to the Superior Court, challenging the jury instructions and the discretionary aspects of his sentence. The Superior Court affirmed his conviction on direct appeal. The Pennsylvania Supreme Court denied review, so the defendant filed a Post-Conviction Relief Act Petition.

The PCRA Petition

In the PCRA petition, the defendant argued that he should receive a new trial because his trial attorney provided the ineffective assistance of counsel. Specifically, he argued that his trial counsel was ineffective for (1) not contesting the Commonwealth’s joinder motion; (2) not objecting to instances of alleged prosecutorial misconduct in the trial prosecutor’s opening remarks; (3) not objecting to the jury verdict sheet; (4) not objecting to the charging of multiple counts of theft by receiving stolen property; and (5) not objecting to the charging of multiple counts of conspiracy in the gun theft case. The PCRA court held an evidentiary hearing at which the defendant’s trial counsel testified.

Trial counsel testified that he did not object to the Commonwealth’s joinder motion because he believed evidence for the theft case would come in anyway and that the motion would pass the judicial test for joinder. He further testified that he believed if he objected the Commonwealth would delay the homicide trial and try the theft case first. He claimed that joinder was prudent because the jury would hear justification as a defense for theft, which they would not if the theft case were tried alone. Finally, regarding the joinder motion, defendant’s trial counsel testified that he believed the judge would let evidence for the theft come in under the res gestae exception in that it would be relevant in telling the full story of the homicide.

The PCRA court granted the petition with respect to the failure to object to the multiple counts of conspiracy because the multiple conspiracy counts were duplicative, but it denied the rest of the petition. The defendant filed a timely notice of appeal to the Superior Court and again raised the joinder issue.

The Superior Court’s Ruling

The Superior Court ultimately ruled in the defendant’s favor. It noted that in order to prevail under the PCRA, a defendant must show three things. First, a petitioner must show that the claim is of arguable merit. Second, the petitioner must show that no reasonably strategic basis existed to support the attorney’s action or omission. Third, the petitioner must show that the attorney’s error caused prejudice, meaning there is a reasonable probability that the result of the proceeding would have been different had the attorney handled things properly.

The defendant argued that trial counsel’s failure to object to joinder had merit because the theft of the revolver was wholly immaterial for the jury’s consideration of whether he shot Cutshall with criminal intent or whether he concealed the firearm illegally. Therefore, it would have been inadmissible as a prior bad act. He further argued that trial counsel’s above reasons for not objecting were unreasonable - the motion would not have been granted had he objected, and the introduction of the evidence caused him a great deal of prejudice. Finally, he argued that he was prejudiced when the cases were tried together because it enabled the Commonwealth to vilify him in the eyes of the jury as a thieving criminal. This made the jury less likely to view him as the victim of a serious crime.

The Pennsylvania Superior Court agreed. It ruled that the evidence that the gun was stolen had nothing to do with the facts of the shooting. The only issue was whether the defendant acted in self-defense, and whether or not the gun was stolen really had no bearing on that. It also found that the defendant suffered prejudice from the failure to object. The prosecution was able to paint him as a thief rather than as a victim, thereby making it more likely that he would get convicted. Finally, the trial attorney had no reasonably strategic basis for failing to object. The lawyer was incorrect about the evidence of the stolen gun being admissible at the homicide trial, and the other reasons were not supported by the law. Specifically, the justification defense would not have applied to the gun charge either way. Therefore, trial counsel provided the ineffective assistance of counsel, and the defendant will receive a new trial.

This is a good opinion for the defense from the Superior Court. Prosecutors are often eager to consolidate cases that should not be consolidated - it allows the Commonwealth to paint the defendant as a bad person who committed more than one crime, which makes it more likely that the defendant will get convicted by a judge or jury. It also makes it harder to defend the case, and it saves the prosecution the resources of having to try two cases. Judges do not always apply as much scrutiny to these motions as they should given the amount of prejudice that inherently comes from having two separate cases tried together. Therefore, this case should provide some limits on the ability on the Commonwealth to smear a defendant with totally unrelated criminal conduct, particularly in a murder prosecution.

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

Philadelphia Criminal Defense Attorney 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.