Philadelphia Criminal Defense Blog

Zak Goldstein 2/3/22 Zak Goldstein 2/3/22

PA Superior Court: Trial Counsel Provided Ineffective Assistance in Advising Defendant Not to Testify

The Pennsylvania Superior Court has decided the case of Commonwealth v. Washington, holding that a defense attorney was ineffective when he gave incorrect legal advice that persuaded his client not to testify at his own trial. This decision is significant because it requires attorneys to provide correct and competent advice when advising their clients whether to testify at trial. Defense attorneys must have a thorough understanding of the rules of evidence when advising their clients whether to testify or even go to trial. This decision provides additional protections to criminal defendants.

Commonwealth v. Washington

Police observed a disturbance outside of a Lancaster City restaurant and lounge. The officers made contact with the involved parties, one of whom was the defendant. The defendant became combative with the officers, yelled profanities, and refused to be arrested. As a result of the defendant’s behavior, the officers used a taser on him to “control the situation.” The defendant was then subsequently arrested and was charged with terroristic threats, resisting arrest, and other related offenses.

The defendant was then taken to Lancaster County Prison. While in prison, he allegedly told his cellmate that he wanted to kill the officers involved in his arrest. According to his cellmate, the defendant solicited him in plotting to kill the officers. The cellmate reported the defendant’s plot to the authorities and gave the names of the specific officers that the defendant allegedly intended to kill. As a result of this, the Commonwealth charged the defendant with four counts of criminal solicitation to commit homicide. The defendant then proceeded to a jury trial on the solicitation charges. At this trial, the cellmate was the main witness against the defendant.

At the conclusion of the trial, the jury convicted the defendant of three counts of criminal solicitation to kill the officers involved in his original arrest. The trial court sentenced the defendant to a term of 25 ½ to 60 years’ incarceration. The defendant then filed an appeal which was denied. He also declined to file a petition for allowance of appeal with the Pennsylvania Supreme Court. The defendant then filed a Post-Conviction Relief Act (“PCRA”) petition alleging ineffective assistance of counsel. However, for reasons that will not be explored in this blog, it was denied. The defendant then filed another PCRA petition. The defendant raised several issues, including that his trial counsel was ineffective in advising him not to testify at trial.

The trial court held a PCRA hearing. At this hearing, defendant’s original trial counsel could not recall if he and Appellant had any pre-trial conversation regarding whether the defendant would testify, but if he did have such a conversation, it would have been “very brief.” However, the trial counsel did state that the defendant turned to him and said “this is not going well, I need to testify…because I need to be able to explain to the jury how [the cellmate] got this information.” At this point, the defendant and trial counsel discussed whether the defendant should testify. The trial attorney then told the defendant that “I don’t want you to get on the stand because the prosecutor could bring up the aggravated assault conviction and then the jury…will think you’re violent.” The trial attorney believed that if the defendant were to testify his conviction for aggravated assault and the details of that conviction would come in for impeachment purposes. Based on that belief, the trial attorney advised the defendant not to testify.

At the hearing, the trial attorney admitted that if the aggravated assault conviction was not admissible for impeachment purposes, “then there would have been no reason to advise [the defendant not to testify]” because he really wanted to explain to the jury how his cellmate got that information. Though the defendant also had a burglary conviction that could have been used for impeachment purposes, the trial attorney stated that he “wasn’t even thinking about the burglary conviction.” Additionally, the trial attorney testified that the defendant was “not a foolish man” and therefore did not have any concerns that the defendant would have “opened the door” to allowing the prosecutor to cross the defendant on his prior aggravated assault conviction. Based on this advice not to testify and the reasons for it, the defendant did not testify at this trial.

The defendant also testified at the PCRA hearing. He testified that prior to trial there was no understanding that he was going to testify. However, as the trial progressed, he told trial counsel that he “wanted to testify so [the jury] could know the whole story as to how any information that was on [his] paperwork was being transmitted by [his cellmate].” Specifically, the defendant would have explained that he had his paperwork in his cell and this was how the cellmate knew the names of the officers involved in Appellant’s first case. The defendant confirmed that his trial counsel told him that if he testified the jury would hear about this prior aggravated assault conviction and he relied on his advice when deciding not to testify.

Following the hearing and submission of post-hearing briefs, the trial court denied the defendant’s PCRA petition. The defendant then filed a timely notice of appeal. The Superior Court then denied his appeal. Undeterred, the defendant then filed a petition for re-argument before an en banc panel of the Superior Court. On appeal, the defendant raised three issues, however for purposes of this blog, only the issue of whether trial counsel’s advice concerning his aggravated assault conviction was so unreasonable that the defendant did not and could not have made a knowing and intelligent decision not to testify at trial.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the lower court’s decision and granted the defendant a new trial. In making its decision, the Superior Court reviewed prior case law and the rules of evidence. Rule 609 of the Pennsylvania Rules of Evidence allows for a witness to be impeached with a prior conviction for a crime if it involves dishonesty or a false statement (also referred to as “crimen falsi”). The Commonwealth conceded that aggravated assault was not a crime that involved crimen falsi. Additionally, there was a prior Pennsylvania Supreme Court decision that held that a defense attorney provided ineffective assistance of counsel when he advised a defendant to waive his right to testify because he could be impeached with his prior drug and firearms convictions.

The Superior Court also agreed that that the trial attorney’s advice to the defendant was improper. Additionally, the Superior Court did not find that the fact that the defendant had a prior burglary conviction, that is a crimen falsiconviction, relevant because the trial attorney specifically testified that his sole reason for advising the defendant not to testify was because of his prior aggravated assault conviction. Further, the Superior Court was not concerned that the defendant’s testimony was probably speculative. The relevant inquiry is whether his decision not to testify would have been different absent his trial attorney’s ineffectiveness. In this case, it is clear that the defendant would have testified had his attorney provided competent legal advice. Therefore, the defendant’s convictions are vacated and he will get a new trial.

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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 1/31/22 Zak Goldstein 1/31/22

PA Superior Court: Police Officer May Not Offer Plea to Summary in Felony Case Without District Attorney's Permission

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

The Pennsylvania Superior Court has decided the case of Commonwealth v. Martinez-Santiago, holding that a plea deal that was negotiated between a police officer and a defendant at the preliminary hearing was invalid due to the officer’s failure to obtain the consent of the district attorney prior to entering into the agreement. This decision is concerning because in counties outside of Philadelphia, defendants and police officers will often negotiate plea deals at the preliminary hearing. This decision holds that the respective district attorney’s offices do not have to honor those plea agreements and can proceed to re-arrest these defendants if the agreement is not to their liking. The defendant in this case thought his felony charges had been resolved with a plea to summaries, but the district attorney was able to reinstate the felony charges despite the fact that the arresting officer and the defendant had resolved the case at the preliminary hearing.

Commonwealth v. Martinez-Santiago

The defendant was arrested by a Pittston Township Police Officer after he allegedly stole a pack of cigarettes from a gas station and physically assaulted the responding officers when he was confronted by them. The defendant was originally charged with two counts of aggravated assault (graded as a felony of the first degree), one count of resisting arrest (graded as a misdemeanor of the second degree), two counts of simple assault (graded as a misdemeanor of the second degree), one count of disorderly conduct (graded as a misdemeanor of the third-degree), and one summary count of retail theft.

About a month after he was arrested, the defendant was scheduled for his preliminary hearing. At his preliminary hearing, the defendant negotiated a plea agreement with one of the officers involved. Specifically, the defendant agreed to withdraw all the charges against the defendant, with the exception of the retail theft charge, and then add two counts disorderly conduct which were graded as summary offenses. Notably, this agreement was not in writing. The defendant immediately agreed to the deal and then was sentenced in front of the Magisterial District Judge.

About a month after the defendant entered into this plea deal, the Commonwealth re-filed the original charges against the defendant. A preliminary hearing was held and the same Magisterial District Judge who accepted the plea held the charges. The case was transferred to the Court of Common Pleas of Luzerne County for trial. After his case was held for court, the defendant filed a motion to dismiss the re-filed charges. Specifically, the defendant argued that the proceedings were being held in violation of the compulsory joinder pursuant to Pa. C.S. § 110(a)(1) and that they violated the double jeopardy clauses of the United States and Pennsylvania Constitutions. The trial court denied the defendant’s motion to dismiss, but the court also concluded his motion was “not frivolous.” The defendant then filed a timely notice of appeal.

On appeal, the defendant argued that the officer was authorized to withdraw the felony and misdemeanor charges without obtaining approval of the District Attorney’s office. The defendant argued that Rule 551 of the Pennsylvania Rules of Criminal Procedure gives the officer authority to withdraw charges. Therefore, in the instant case, the officer was the Commonwealth’s “designee” and therefore was acting under the color of his authority when he sua sponte negotiated and implemented the plea agreement.

What is Rule 551 of the Pennsylvania Rules of Criminal Procedure?

Rule 551 of the Pennsylvania Rules of Criminal Procedure states: “In any court case pending before an issuing authority, the attorney for the Commonwealth, or his or her designee, may withdraw one or more of the charges. The withdrawal shall be in writing.”

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the trial court’s order. The Superior Court rejected the defendant’s argument that the officer was an official “designee” of the Commonwealth. The Superior Court held that “a police officer does not become a designee simply by virtue of his mere presence at a proceeding.” According to the Superior Court, there must be “some documentation or corroboration…to establish the existence of such a delegation of authority by the Commonwealth to a [police] officer.” Additionally, the Superior Court held that this plea agreement was not valid under Rule 551 because it was not done in writing as required by the statute. Therefore, because of a lack of corroborating lack of documentation, the defendant’s plea agreement was “unsuccessful and legally insufficient.” Finally, the Superior Court held that the Magisterial District Judge did not have jurisdiction to transform the preliminary hearing into a guilty plea hearing because the felony and misdemeanor charges against the defendant “were never legitimately withdrawn” because the court did not have “proper authorization or documentation.” As such, the defendant will have to face trial on the previously withdrawn felony and misdemeanor charges.

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Zak Goldstein 1/11/22 Zak Goldstein 1/11/22

PA Superior Court: Hearsay Alone Insufficient at Preliminary Hearing to Prove Defendant in Particular Committed Crime

The Pennsylvania Superior Court has decided the case of Commonwealth v. Harris, holding that the Commonwealth must present admissible non-hearsay evidence at a preliminary hearing to establish that a crime was committed and that the defendant was the actual person who committed the crime. It it is not enough to present some live testimony to show that a crime was committed and then use hearsay to show that the defendant committed the crime. Instead, some live, admissible testimony or evidence must be presented to show that it was the defendant who actually committed the crimes charged. This is an important decision which further recognizes the fact that the preliminary hearing is one of the only safeguards against prolonged detention prior to trial in a case where the Commonwealth has little or no competent evidence.

Commonwealth v. Harris

A Philadelphia Police Officer received a radio call for a gunshot victim in Philadelphia. When he arrived, the officer found the complainant bleeding from gunshot wounds to his right wrists and left thigh. The complainant was then taken to a nearby hospital. A short time later, a Philadelphia Detective obtained a statement from the complainant about what happened. The complainant stated that the defendant and his brother confronted him about stealing drugs from them. During the confrontation, both men pulled out guns and began firing, striking the complainant as he ran away. Based on this information, the detective then went to the crime scene and found multiple projectiles and fired cartridge casings. The detective then returned to the hospital with photographs of the defendant and his brother and the complainant identified them as the men who shot him.

For unknown reasons, the Commonwealth waited two years before finally filing its criminal complaint against the defendant. The defendant was arrested and charged with attempted murder, aggravated assault, VUFA offenses, and other related offenses. The complainant would not attend the defendant’s preliminary hearings. As such, the Commonwealth called the detective who testified to the above stated facts. The defense attorney objected to this testimony at his preliminary hearing because it was hearsay evidence. The defendant was then held for court on all charges. After the defendant’s preliminary hearing was decided, the Pennsylvania Supreme Court issued its decision in Commonwealth v. McCelland, which held that the Commonwealth cannot rely on hearsay alone to establish a prima facie case at a preliminary hearing. The defendant then filed a motion to quash the charges against him and the trial court granted his motion.

The Commonwealth then filed an appeal. On appeal, the Commonwealth argued that McCelland was not applicable to the defendant’s case because it had presented other non-hearsay evidence at the preliminary hearing. According to the Commonwealth, so long as the prosecution presents some direct evidence for one element of a charged offense, then it is allowed to rely on hearsay alone for the other elements of the crime, including the identification of the defendant. The Commonwealth argued that Rule 542 (E) of the Pennsylvania Rules of Criminal Procedure permits this.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the trial court’s order quashing the charges against the defendant. First, the Superior Court stated that the preliminary hearing is not a formality and that its purpose is to “prevent a person from being imprisoned or required to enter bail for a crime...for a crime which there is no evidence of the defendant’s connection.” In making its decision on the Commonwealth’s appeal, the Superior Court analyzed both the relevant statutes and prior case law addressing these issues. First, the Superior Court looked at Rule 542 of the Pennsylvania Rules of Criminal Procedure which states that at a preliminary hearing, the court must determine whether there is a prima facie case that an offense has been committed and that the defendant has committed it.

Based on these principles, Superior Court held that at the preliminary hearing the Commonwealth must present admissible non-hearsay evidence to establish both whether there is a prima facie case that a crime was committed and that the defendant committed said crime. In other words, the Commonwealth must present admissible non-hearsay evidence to establish the elements of the crime and that the defendant was the perpetrator of said crime. Additionally, the Superior Court rejected the Commonwealth’s argument that it can establish any element of the charges offenses with hearsay once it adduces non-hearsay evidence as to any element of the crime. The Superior Court opined that hearsay evidence is admissible, but it must be used to either corroborate direct evidence regarding an element of the crime or crimes charged or evidence that has to do with “the value of the property for grading purposes, lab reports and such [that] can be introduced because they do not materially affect the defendant’s due process rights.” Therefore, the trial court’s order to quash the charges against the defendant is granted, and the Commonwealth will have to rearrest him and present admissible non-hearsay evidence at his trial if they wish to proceed with the case against him.

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Zak Goldstein 1/6/22 Zak Goldstein 1/6/22

PA Supreme Court: Prosecutors Must Introduce Real Evidence of Dangerousness to Revoke Bail

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Talley, holding that prosecutors must introduce real evidence that a defendant is a danger to the community and no conditions of release can prevent that danger in order to revoke bail. This situation frequently comes up where a defendant has been held in custody on cash bail for 180 days. Once that happens, the defense may file a motion for nominal bail pursuant to Pennsylvania Rule of Criminal Procedure 600(B). Pursuant to 600(B), a defendant may not be held in custody for more than 180 days (with exceptions for periods of time where the defense caused the continuance) without a trial. If 180 days pass from the date of arrest, then the defendant should be released on nominal bail. In response, prosecutors frequently move to revoke bail, arguing either that the defendant is too big of a flight risk to release or that the defendant is so dangerous that he or she should not be released. Courts often grant these motions based solely on the prosecutor’s hearsay representations regarding the strength of their case and a defendant’s criminal history, and the Supreme Court has now ruled that such a procedure is not constitutional.

The Facts of Talley

The defendant was arrested and charged with aggravated assault, stalking, harassment, and related charges. Police alleged that he had sent threatening messages to his ex-girlfriend via social media and also shot a bullet into the wall of her house. This behavior went on for a while, and police eventually arrested Talley for these charges. The specifics of the charges are not particularly relevant to the issue in the appeal other than the fact that the charges involved violent crimes.

The defendant was initially released on bail. While he was in custody, the threatening messages had stopped. Once he was released, the complainant began to receive them again. The police arrested the defendant again, and his bail was increased. He was not able to afford the new bail, and he was held in custody.

After the Commonwealth held the defendant in custody for more than 180 days, he filed a motion for release on nominal bail pursuant to Pennsylvania Rule of Criminal Procedure 600(B). 600(B) permits a defendant to petition for nominal bail after they have been held for more than 180 days through no fault of their own. The individual should generally be released at that point, often on house arrest. In response, however, the Commonwealth usually files to revoke the defendant’s bail, arguing that “no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great.”

The trial court waited four months to hear the motion but eventually held a hearing on it. At the hearing, the Commonwealth simply argued that based on the facts of the case as described in the affidavit of probable cause, the defendant was a risk to the complainant and the community and that he should be held in custody. The Commonwealth also insisted that the defendant could not be released on house arrest without explaining any particular justification for that assertion. The court then denied the defendant’s motion.

The Supreme Court Appeal

The Supreme Court ultimately accepted the defendant’s appeal in order to clarify what type of evidence and how much evidence the Commonwealth must present at a hearing on a motion to revoke a defendant’s bail completely. While hearsay is generally allowed at bail hearings, the motion to revoke bail is different because all defendant’s other than those facing a life sentence for a first degree murder charge are entitled to bail. Therefore, the Commonwealth has to prove that the defendant is actually a risk to the community.

In the past, most judges have allowed the Commonwealth to simply make argument. In other words, the prosecutor will generally describe the allegations, claim that the evidence is very strong, and tell the court about any prior convictions that the defendant has. If the defendant has no record, most judges will grant the motion for nominal bail and release a defendant on house arrest. But where a defendant has a criminal record, many judges will revoke bail at the Commonwealth’s request without conducting any significant review of either the evidence of dangerousness or the strength of the evidence in the case.

The Supreme Court clearly rejected this procedure and held that the Commonwealth must show more than a mere prima facie showing that the defendant has committed the crimes charged. Thus, the fact that the defendant has been held for court following a preliminary hearing or that an arrest warrant was issued is not enough. At the same time, the Pennsylvania Constitution does not require the Commonwealth to introduce proof beyond a reasonable doubt. Instead, the Commonwealth must present a substantial quality of legally competent evidence, meaning evidence that is admissible under the Rules of Evidence, to show the trial court that the defendant should not be released. The Commonwealth may not simply describe the evidence, provide the trial court with hearsay, or rely upon a cold record or untested assertions alone. The Commonwealth must call actual witnesses and present real evidence to show that it is substantially more likely than not that the accused should not be released because the accused is too dangerous to be released.

The Court emphasized that this is a high evidentiary standard that applies only to a motion to revoke bail. It does not apply to a general motion to raise bail. Further, the Court should strongly consider release conditions that can ensure the safety of the community such as regular check ins with pre-trial services, house arrest, electronic monitoring, and things of that nature. The practice of simply asserting that the defendant committed a serious crime and so should be held without bail is no longer acceptable.

Ultimately, this opinion should result in far fewer defendants being held without bail simply because they asserted their speedy trial rights under Rule 600(B). The Court has added some real teeth to the rule by significantly increasing the burden that the Commonwealth must meet in order to hold someone without bail when they are not charged with murder. Most defendants should now not be held without bail even where they are charged with serious crimes if they do not have a history of committing crimes while released on bail or have never been placed on house arrest before. Thus, courts throughout the Commonwealth will now be required to mores strictly enforce the speedy trial guarantee of Rule 600(B). This is a great decision as many defendants are held without bail for years while awaiting trial while ostensibly presumed innocent. Now the presumption of innocence should have more meaning in Pennsylvania.

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