Philadelphia Criminal Defense Blog

Zak Goldstein 11/23/21 Zak Goldstein 11/23/21

PA Superior Court: Child Complainant Who Does Not Understand Obligation to Tell the Truth May Not Testify

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of In the Interest of K.B., affirming a trial court’s finding that a child complainant was incompetent to testify at the defendant’s trial. This decision is significant because the Commonwealth routinely calls children to testify and oftentimes these children are not legally competent to testify, but trial courts will nonetheless hold that they are competent. As such, this decision will give defense attorneys additional support in litigating these competency motions.

In the Interest of K.B.

The complainant, a six-year-old, disclosed to her father that the defendant (also a juvenile) had touched her genitalia on two occasions. A few days later, the complainant participated in a forensic interview where the complainant made an additional disclosure that the defendant had penetrated her. Based on these disclosures, the defendant was charged with one count of rape and three counts of aggravated indecent assault.

A hearing was subsequently held to determine whether the complainant was competent to testify. At the hearing, the complainant would routinely say that she was in the tenth grade because she thought she was supposed to answer that way. After the hearing, the trial court held that the complaint was incompetent to testify. A few days later, the Commonwealth filed a motion for reconsideration and a motion to reopen testimony requesting that the trial court allow an expert witness to testify regarding the complainant’s testimony. The trial court denied the Commonwealth’s reconsideration motion, but granted the motion to reopen testimony.

At this subsequent hearing, the Commonwealth called the complainant’s therapist as an expert to testify. At this hearing, the therapist admitted that the complainant “sometimes give something incorrect as an answer if she thinks that’s what she is supposed to say.” Additionally, the therapist testified that the complainant “does not understand the impact or the seriousness of the allegations” she made against the defendant. At the conclusion of the hearing, the trial court reaffirmed its finding that the complainant was incompetent to testify at trial. The Commonwealth then filed an interlocutory appeal. On appeal, the Commonwealth argued that the trial court abused its discretion by finding that the complainant was incompetent to testify.

What Rule Governs Competency?

Rule 601 of the Pennsylvania Rules of Evidence governs competency. The rule provides:

a) General Rule. Every person is competent to be a witness except as otherwise provided by statute or in these rules.
(b) Disqualification for Specific Defects. A person is incompetent to testify if the court finds that because of a mental condition or immaturity the person:
(1) is, or was, at any relevant time, incapable of perceiving accurately;
(2) is unable to express himself or herself so as to be understood either directly or through an interpreter;
(3) has an impaired memory; or
(4) does not sufficiently understand the duty to tell the truth.

In regards to children, Pennsylvania appellate courts have stated that “the capacity of young children to testify has always been a concern as their immaturity can impact their ability to meet the minimal legal requirements of competency.” Pennsylvania courts have also held that children can have a difficult time distinguishing fantasy from reality; can want to give an answer that “pleases” the questioner; and have a limited capacity for accurate memory. As such, for child witnesses under the age of 14, a trial court must make an independent determination of competency which requires a finding that the witness possess 1) a capacity to communicate, 2) the mental capacity to observe the actual occurrence and the capacity of remembering what it is that he or she is called to testify about; and 3) a consciousness of the duty to speak the truth.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the trial court’s decision. In its opinion, the Superior Court held that the record supported the trial court’s findings that the complainant did not sufficiently understand her duty to tell the truth and was unable to perceive accurately. Specifically, Superior Court gave great weight to the fact that the six-year-old complainant would routinely say yes when asked if she was in the 10th grade. Additionally, the Superior Court also found it concerning that the complainant was unable to perceive the nature of the events about which she was called to testify. As such, the Superior Court found that the trial court did not abuse its discretion and therefore the Commonwealth will not be able to call the complainant to testify at the defendant’s trial.

Facing Criminal Charges? We Can Help.

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 obtained new trials and sentencing hearings for clients on appeal and in post-conviction litigation. 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 11/11/21 Zak Goldstein 11/11/21

Attorney Goldstein Obtains New Sentencing in Federal Court for Murder Defendant Sentenced to Illegal 40-Year Sentence

Philadelphia Criminal Defense Attorney Zak Goldstein recently obtained a new sentencing hearing for a client who had been sentenced to an illegal 40-year sentence for third degree murder. In S.C. v. Krasner, et al., the defendant had been found guilty of third degree murder by the Philadelphia Court of Common Pleas. At the time that the murder was committed, the statute in effect for third-degree murder authorized a maximum sentence of 20 years’ incarceration. While the case was pending, however, the Pennsylvania Legislature amended the statute to increase the maximum to 40 years’ incarceration. Following his conviction, the Court of Common Pleas improperly sentenced S.C. to 40 years’ incarceration despite the fact that ex post facto rules prohibit the government from retroactively applying laws which make penalties worse where those laws were not in effect at the time that the crime was committed. S.C.’s attorneys did not appeal on this issue at the time.

S.C. had a number of legal issues and was serving sentences in multiple jurisdictions at the same time. Over the years, he wrote to his original attorneys asking that they appeal the 20-40 year sentence because the sentence violated his rights in that he received a worse punishment than he could have received at the time of the offense. The attorneys wrote back and erroneously advised him that there was no rush to file an appeal or PCRA petition because the illegal sentence could be corrected at any time. Ultimately, S.C. made parole, but because of the illegal sentence, he would have remained on parole for twenty years. S.C. therefore filed a PCRA petition with prior counsel asking that the Court of Common Pleas for Philadelphia correct the illegal sentence and re-sentence him to 10-20 years’ incarceration. The trial court denied that petition, finding that it was untimely filed and that S.C. should have appealed at the time of his original sentencing. The Superior Court affirmed.

S.C. then retained Attorney Goldstein to file a petition in federal court. In general, once state court appeals and PCRA petitions have been denied, it is sometimes possible to challenge the rulings of the state courts in federal courts by filing a federal habeas petition pursuant to 28 US Code § 2254. Attorney Goldstein therefore filed a petition asking the federal court to find that the illegal sentence should be vacated because S.C. could not have properly received a 40 year sentence at the time of his original sentencing.

Attorney Goldstein also argued that the doctrine of equitable tolling should apply. In most cases, a federal habeas petition is subject to a one year statute of limitations which begins to run form when the defendant’s sentence becomes final. This typically means that the petition must be filed within about a year of the conclusion of any appeals, although a defendant may have an additional thirty or ninety days if the defendant appealed to the Superior Court or Pennsylvania Supreme Court. Equitable tolling is a doctrine which allows a federal court to consider a claim even when the statute of limitations has expired.

In order to receive equitable tolling, a petitioner must establish two elements: (1) that he or she has been pursuing his or her rights diligently, and (2) that some extraordinary circumstance stood in his way. Some federal courts have applied equitable tolling where it is clear that the petitioner was abandoned by counsel or received incredibly incorrect legal advice.

In this case, Attorney Goldstein filed the habeas petition, and the Philadelphia District Attorney’s Office then actually agreed to the relief sought. The Commonwealth, through its Conviction Integrity Unit, conceded that S.C. should not have received a sentence of more than 20 years under the third-degree murder statute which was in effect at the time of the crime. Given the Commonwealth’s agreement, the Eastern District of Pennsylvania promptly granted the habeas petition and ordered that the state court re-sentence S.C. S.C. then received a 10-20 year sentence, which he had already served, at the re-sentencing. Accordingly, he will not have to spend 20 years subject to the restrictions and whims of state parole.

Facing criminal charges? We can help.

Philadelphia Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

Zak Goldstein 11/10/21 Zak Goldstein 11/10/21

PA Superior Court Allows Detention of Motorist Based on Nervousness, Travel to Philadelphia, and Criminal Record

The Pennsylvania Superior Court has decided the case of Commonwealth v. Galloway, holding that a state trooper did not unlawfully prolong a traffic stop because the defendant was acting nervous and also admitted that he had just left Philadelphia. This decision is extremely troubling because it suggests that people who travel to Philadelphia have fewer rights than those who do not, and the level of suspicion here was very low. It remains possible that the decision could be reversed in further proceedings.

Commonwealth v. Galloway

A Pennsylvania State Trooper was on highway patrol when he pulled over a black Honda Civic for traveling 64-mph in a 55-mph zone. The defendant was in the passenger seat. While the trooper was conducting the traffic stop, the dashcam video picked up a car in the left bound passing lane passing the trooper and the driver’s vehicles. Because of the location of the stop, the trooper approached the passenger side window of the vehicle so that he was not so close to the traffic.

As the trooper approached, he noticed that both the defendant and the driver were acting nervous. Specifically, the defendant was not making eye contact with him and was sweating profusely. The trooper thought it was suspicious that the defendant was sweating so much because it was very cold at the time. The trooper then told the driver why he pulled him over and asked for his information. He also asked the defendant for his identification, to which the defendant told him he did not have any on him. The defendant provided him with his information verbally, and when the trooper ran the defendant’s information, he learned that the defendant “had a lengthy criminal history involving drug dealing out of the state of Delaware.”

The trooper informed the driver that he would be letting him go with just a warning, but he did not return his driver’s license to him. The trooper then continued to question the defendant and the driver as to where they were driving from, what they were doing, and the reason why the defendant was sweating so much. Both the driver and the defendant told the trooper that they just left Philadelphia where they got cheesesteaks on South Street. The trooper would later testify that based on his experience, he knew that Philadelphia was a hub for narcotics distribution. As such, the trooper asked the defendant to step out of the car and when he did, the trooper noticed a marijuana bowl in the center console of the car. The trooper then conducted a vehicle search of the car and found 1,575 bags of heroin on the floor. Both the driver and the defendant were arrested and read their Miranda rights.

The defendant was subsequently charged with possession with intent to deliver a controlled substance (“PWID”), possession of a controlled substance, and possession of drug paraphernalia. The defendant then filed a pre-trial motion to suppress the contraband found in the vehicle because of “the prolonged nature of the detention was illegal in that it went well beyond the reason for the traffic stop itself...and was not supported by a reasonable suspicion.” In other words, the defendant argued that the trooper unlawfully extended the traffic stop. The trial court held a hearing, agreed with the defendant, and granted the defendant’s motion to suppress. The trial court held that the “[t]rooper…was not presented with sufficient particularized facts to constitute the reasonable suspicion required to continue detaining [the driver] and [the defendant] past the point of writing a speeding ticket or issuing a warning.” The Commonwealth then filed an interlocutory appeal.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the trial court’s suppression order. The Superior Court found that, when viewing the totality of the circumstances, that the trooper “possessed the requisite reasonable suspicion to extend the traffic stop to investigate his concerns that [the defendant] and the driver were engaged in criminal activity.” According to the Superior Court, the trooper had reasonable suspicion to prolong the stop because: the defendant traveled to Philadelphia, Philadelphia has a reputation for narcotics sales, the defendant was acting nervous, and his prior criminal history. Therefore, the trial court’s suppression order is reversed and the Commonwealth will be able to use the drugs and paraphernalia against the defendant at his trial.

Clearly, the evidence supporting the stop in this case was thin. It is not criminal to travel to Philadelphia, and it is not unusual to be nervous when dealing with the police even if you have not done anything wrong. The Court seems to have heavily emphasized the defendant’s excessive nervousness and criminal history, but as the defendant was not on probation or parole, the criminal history should not have resulted in any lesser rights against a search or seizure. This case also fails to follow other recent cases in which the Superior Court has unequivocally held that nervousness alone is not enough to justify a search of a vehicle. Under current law, however, the troopers would have needed to obtain a search warrant prior to conducting the search. That was not the state of the law at the time of the motion, however, so the defendant failed to raise that issue. Accordingly, the Court upheld the validity of the search and remanded the case for trial.

Facing Criminal Charges? We Can Help.

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. 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 10/28/21 Zak Goldstein 10/28/21

PA Supreme Court: New Claims of Ineffective Assistance of PCRA Counsel May Be Raised on Appeal

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Bradley, holding that a petitioner who has had a Post-Conviction Relief Act Petition (“PCRA”) denied by the Court of Common Pleas and who has retained new counsel may raise new claims relating to PCRA counsel’s ineffectiveness while still on appeal from the denial of the PCRA Petition. This is a dramatic change in Pennsylvania PCRA practice because Pennsylvania previously provided almost no protections against the ineffective assistance of PCRA counsel. Instead, a criminal defendant who sought to challenge his or her sentence due to the ineffective assistance of PCRA counsel would have to wait until after the PCRA appeal was denied to file a habeas petition in federal courts. The federal procedural rules are extremely difficult to navigate, and federal courts are often hostile to these claims. This decision could provide some benefit to PCRA petitioners who may have received the ineffective assistance of counsel from their PCRA attorney. This is unfortunately a common occurrence.

What is a PCRA?

The most common use of the PCRA is for a criminal defendant who has lost his or her direct appeal to seek a new trial or sentencing based on the ineffective assistance of trial or appellate counsel. For example, if trial counsel failed to call critical defense witnesses, object to improper jury instructions, or litigate a meritorious motion to suppress, then the defendant can file a PCRA petition asking the trial judge to overturn the conviction because had the trial lawyer done their job properly, the defendant would have won the case or received a better outcome.

In order to win a PCRA Petition, a petitioner must show that a claim has arguable merit, prior counsel had no reasonably strategic basis for what they did or failed to do, and that the petitioner suffered prejudice from counsel’s failure. Prejudice essentially means that the mistake could have lead to a different outcome. Thus, a PCRA Petition in a rape case could allege that a defense attorney who represented a defendant who had no criminal record at the time of trial should have called character witnesses to testify about the defendant’s excellent reputation in the community for being a peaceful, law-abiding person. Character evidence is really important, and defense attorneys frequently do not understand their obligation to present this evidence on behalf of their clients. In such a case, the defendant could receive a new trial due to the attorney’s failure.

Prior to this decision, however, if the defendant filed a PCRA and did not mention character witnesses but should have, then the defendant would not be able to raise that issue on appeal from the denial of some other claim even if the defendant changed lawyers for the appeal and it was obvious that the defendant had those witnesses available. Instead, the defendant had to wait until the PCRA appeals were denied and potentially file a habeas petition in federal court.

The Change in PCRA Procedure

Under Bradley, however, the defendant may now raise the claims directly in the Pennsylvania Superior Court even if they were not raised in the trial court. If the claim can be resolved without any need to develop a record at an evidentiary hearing, the Superior Court can rule on the claim. If the claim suggests that the trial court needs to make an evidentiary record, then the Superior Court may remand the case to the Court of Common Pleas for that Court to receive evidence and make an initial ruling. The appeal would then begin again if either side is unhappy with the outcome. This means that some claims may now be addressed on appeal in the Superior Court, preventing the need for these claims to be raised for the first time years later in the federal courts which often do not particularly want to hear them. That provides some benefit to defendants.

Will this affect federal habeas corpus litigation?

There are some concerns about whether this will limit a petitioner’s ability to seek relief in federal court. Currently, defendants may file a habeas petition to challenge their state conviction in federal court and allege the ineffective assistance of PCRA counsel. Thus, if the PCRA lawyer from the prior example failed to raise the character issue and the federal lawyer realized that the PCRA lawyer should have done so, the federal lawyer could allege in federal court that PCRA counsel was ineffective in failing to bring a PCRA against trial counsel for failing to call character witnesses.

Under a relatively recent case called Martinez v. Ryan, the federal courts would then generally review a claim of this nature on the merits. The federal courts, however, would not review claims of ineffective assistance of appellate PCRA counsel. That means that all of this is very complicated - will the federal courts continue to allow merits review of ineffective assistance of PCRA counsel claims given that those claims may now be raised in the Superior Court? Could the Martinez rule be extended to appellate counsel? Or will the federal courts find that now that Pennsylvania has provided a mechanism for challenging PCRA counsel’s performance on appeal, it is no longer necessary for them to get involved? The answers to these questions are not clear.

What should I do if my direct appeal has been denied and I want to keep fighting?

Ultimately, criminal appeals, PCRAs, and federal habeas petitions are very complicated. They are all particularly specialized areas of law. In general, a criminal defendant has about a year (sometimes slightly more) from the denial of the appeals to begin the PCRA or federal habeas process. These deadlines are for real, and so it is extremely important that if you are serving a long sentence, have lost your appeal, and want to continue to fight your case, that you contact an attorney who regularly litigates PCRA and habeas petitions and appeals. Our Philadelphia criminal defense lawyers are well versed in this area of the law and are happy to discuss whether you may have a viable claim on appeal or that you received the ineffective assistance of counsel.

Read the case

Facing criminal charges? We can help.

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. 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.