Philadelphia Criminal Defense Blog

Zak Goldstein 11/17/23 Zak Goldstein 11/17/23

PA Superior Court: Commonwealth Must Provide Bill of Particulars and Give Alleged Mechanism of Death in Homicide Case

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. McKnight, holding that the trial court did not abuse its discretion in granting the defendant’s motion for a bill of particulars identifying the mechanism by which the Commonwealth alleged the defendant killed the decedent in a homicide/poisoning case. This is an interesting case because requests for bills of particulars are fairly rare in modern litigation, and here, the trial court ordered the Commonwealth to essentially specify its theory of criminal liability for the defendant in advance of trial.

The Facts of McKnight

The Commonwealth filed a Bill of Information charging the defendant with first-degree murder and attempted murder. The Commonwealth alleged that the defendant caused the death of a three-month-old infant by poisoning the infant with fentanyl. The Commonwealth also alleged that the defendant attempted to murder a 16-month-old toddler with fentanyl. The Commonwealth also filed notice of its intent to seek the death penalty. The defense responded with a motion for a bill of particulars asking the Commonwealth to identify how the drugs in question were allegedly administered to the children. The defense argued that without knowing what the Commonwealth actually alleged the defendant did, they would be unable to effectively prepare for trial and to defend against the specific allegations.

The Commonwealth filed a response in which it refused to provide a bill of particulars. The Commonwealth argued that the request was an improper attempt to obtain the Commonwealth’s evidence and theory of the case in advance. The defense filed a motion asking the trial court to direct the Commonwealth to respond. The trial court granted the defense motion and ordered the Commonwealth to respond. It also ruled that should the Commonwealth fail to respond, the trial court could preclude the Commonwealth from seeking the death penalty at trial.

The Commonwealth filed a notice of appeal and certified that the order terminated or substantially handicapped its prosecution of the defendant pursuant to Rule 311(d) of the Pennsylvania Rules of Appellate Procedure. The Commonwealth argued on appeal that it should not have to provide the requested information to the defense in advance.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior court affirmed the trial court’s order. First, the Superior Court ruled that the appeal was properly filed even though it was an interlocutory appeal. In general, appeals may not be filed until a case is over. The Commonwealth, however, may file an interlocutory or pre-trial appeal where a trial court’s order would terminate or substantially handicap the prosecution. The Commonwealth must certify in good faith that the order would have that effect. Here, it was a little bit of a stretch that the order would really hurt the Commonwealth’s case, but the Superior Court allowed the appeal. It concluded that the trial court would potentially bar the Commonwealth from seeking the death penalty, and that remedy would have a substantial effect on the prosecution of the case.

Although the Superior Court allowed the appeal, it did rule that the trial court properly ordered the Commonwealth to respond. The Superior Court agreed with the trial court that the defendant’s request was an attempt to clarify the pleadings and prepare an adequate defense. It was therefore not an improper request, and the trial court did not abuse its discretion in ordering the Commonwealth to provide more information. The Court explained that the defense could differ significantly if the Commonwealth alleged a specific method of poisoning the children versus contending that she poisoned the children in a manner that could not be definitively determined. The Court also noted that the trial court had broad discretion to rule on a motion for a bill of particulars. The Court also ruled that the Commonwealth waived its challenge to the potential sanction of being barred from seeking the death penalty for failing to raise this claim in the trial court. Therefore, the Court accepted the appeal on the merits, but it affirmed the trial court’s ruling and directed the Commonwealth to provide more information as to how it believed that the defendant committed the homicide and attempted murder.

The Takeaway

The decision in Commonwealth v. McKnight shows the importance of pre-trial litigation and filing strategic pre-trial motions. The Commonwealth will now have to disclose how it believes the defendant committed the crimes charged, and it will not necessary be able to obtain a conviction if it ends up proving at trial that the crimes were committed in some other way. The defense will gain valuable information that will help it prepare for trial, and the defense is much less likely to be ambushed with some novel theory at the last minute. The prosecution often gets away with a lot of last minute changes and disclosures, and here, the ruling on this motion prevents them from doing that. It is critical in every case to think about how the filing of pre-trial motions may benefit the defendant at trial or help to even avoid a trial.

Facing criminal charges or appealing a criminal conviction?

Philadelphia 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 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.

Zak Goldstein 11/3/23 Zak Goldstein 11/3/23

PA Superior Court: Sex with Unconscious Person Not Sufficient Evidence for Rape by Forcible Compulsion Conviction

Philadelphia Criminal Lawyer Zak T. Goldstein, Esquire

The Superior Court of Pennsylvania has decided the case of Commonwealth v. Banniger, holding that evidence that a defendant had intercourse with an unconscious person, without more, is insufficient to prove the “forcible compulsion” element in a rape or involuntary deviate sexual intercourse (“IDSI”) case where the prosecution has proceeded under the forcible compulsion subsection of either statute.

The Facts of Banniger

In Banniger, the complainant testified that when she was 15 years old, the adult defendant gave her marijuana, and she would smoke with the defendant while they were alone in the house. The defendant told her that he liked her and wanted to be with her. The victim told the defendant to stop. Shortly after that, the victim went to her room to lie down. She testified that on two occasions she was sexually assaulted by the defendant.

For the first incident, the complainant testified she awoke in her aunt’s room with her shorts pulled to the side, the defendant’s head between her legs, and with his tongue on and inside her vagina. She did not testify that she was frozen with fear, nor did she say how long the defendant continued or how the incident ended.

She testified that for the second incident, she woke up in her grandmother’s room. Her clothes were again pushed to the side and the defendant’s tongue was inside of her vagina. The defendant then pulled her pants off and inserted his penis into her vagina. The complainant, frozen in fear, just let it happen as she did not know what else to do. She then fought the defendant off because he was being forceful. The complainant ran into another room. She later told her older sister about the incident.

Following a non-jury trial, the judge found the defendant guilty of rape by forcible compulsion, involuntary deviate sexual intercourse by forcible compulsion, unlawful contact with a minor, statutory sexual assault, corruption of a minor, indecent assault of a person less than 13 years of age, involuntary deviate sexual intercourse of an unconscious person, and sexual assault. The trial court sentenced the defendant to an aggregate term of 14-34 years’ incarceration followed by three years’ reporting probation. The defendant filed a post-sentence motion. The court denied it, and the defendant appealed to the Pennsylvania Superior Court.

The Superior Court Appeal

On appeal, the defendant challenged the sufficiency of the evidence supporting the rape and IDSI - forcible compulsion convictions, arguing that he did not use force because the complainant testified that she was asleep and woke up to the sexual assaults. Both statutes have different sections that apply to the sexual assault of an unconscious person, so the defendant argued that he should have been charged under those sections rather than with forcible compulsion.

The Superior Court agreed with the general idea that the rape of a person who is asleep does not amount to forcible compulsion but affirmed the convictions nonetheless. The court reasoned that in sexual cases, the object of the force is to compel a person to engage in sexual intercourse against that person’s will. They continued that “forcible compulsion” depends on a totality of circumstances, providing a non-exhaustive list of factors to consider including age of the victim and the defendant, mental and physical conditions of the complainant and the defendant, atmosphere and physical setting in which incident took place, and whether the complainant was under duress. Ultimately, the court recognized that each case turns on its own specific facts.

Force, however, does not necessarily require resistance from the complainant. Instead, the question is whether the defendant’s physical, intellectual, moral, emotional, or psychological force compelled the complainant to submit to intercourse against their will.

The court noted that while consent will negate finding forcible compulsion, forcible compulsion requires more than a mere lack of consent. Where lack of consent exists, but no showing of either physical force, a threat of physical force, or psychological coercion can be established, forcible compulsion does not exist.

Although an unconscious victim may not consent, not every person who has intercourse with an unconscious victim does so by forcible compulsion. Noting that while the factor involving a victim’s physical condition includes evaluating a lack of consciousness, that is only one circumstance to be considered under the totality test for forcible compulsion.

Accordingly, the court held that the mere act of intercourse with an unconscious person does not prove forcible compulsion. It may well violate other statutes, but it does not violate the specific statutes with which the defendant was charged.

The court, however, affirmed the conviction because it found that the complainant was not actually asleep for the entirety of both sexual assaults. With respect to the second incident, she testified that she woke up and was then frozen with fear as the abuse progressed. At first, she let it happen and did not resist because she was frozen with fear and did not know how to respond. She eventually fought the defendant off. Thus, under the totality of the circumstances, including the extended familial relationship, the use of marijuana, her initial unconsciousness, and her fear of the defendant’s response if she resisted, the Commonwealth proved forcible compulsion. The court therefore affirmed the conviction.

The Take away

Although things did not work out for this particular defendant, this is a pretty good opinion from the Superior Court in terms of analyzing the statute and reaching a logical conclusion. As the statute says, Rape or IDSI by forcible compulsion requires some level of actual force - psychological, physical, or otherwise, in order for the statute to apply. The elements are not met simply because penetration occurred without consent. Instead, that is essentially the definition of the somewhat less serious charge of sexual assault as a felony of the second degree. Therefore, sexual intercourse with someone who is totally unconscious or asleep is generally not going to be rape or IDSI by forcible compulsion. The problem for this defendant, however, is that the complainant testified that she was not totally asleep for the entirety of the incident and that she had other reasons for not resisting.

When fighting any case, it is important that the defense attorney be familiar with the elements of the statute. The attorney should never assume that the Commonwealth has charged the right statute or subsection of a statute. In many cases, the defense to criminal charges may be a legal one rather than a factual one, and a legal one that ends in an acquittal is just as good as a factual one that ends in an acquittal.

Facing criminal charges or appealing a criminal conviction?

Zak Goldstein 10/30/23 Zak Goldstein 10/30/23

PA Superior Court: Police may search you to figure out who you are if you’re having a medical emergency

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Williams, holding that police did not illegally search the defendant and his bag where the search was not for evidence but instead to try to figure out who he was and why he was found unconscious on a public street.

The Facts of Williams

In Williams, the the police received a call for an unconscious male. They arrived at the location in the call, and they found the defendant unconscious in the driver’s seat of a blue Dodge Durango with the driver’s side door open. He was sort of halfway hanging out of the vehicle. One of the officers also saw several pill bottles on the sidewalk nearby and a large amount of money on the ground.

The police got him to wake up a little bit, but he seemed too intoxicated to answer any questions. He had slurred speech and did not appear to understand the police. The police were unable to get his name, and he needed assistance to exit the vehicle and sit on the ground. The defendant continued to mumble incoherently and state that he did not want to get shot.

The police were unable to get get his name and date of birth from him, so they asked him if they could search the car. He said yes. The police recovered blue pill bottles containing marijuana and $12,500. The officers also smelled marijuana coming from a backpack which was next to him on the ground. They searched the backpack and found a gun. The defendant did not have a license to carry and had prior convictions that prohibited him from carrying a gun, so the police arrested him and charged him with possession of drugs and guns.

The Motion to Suppress

The defendant moved to suppress the physical evidence. He argued that police should have obtained a search warrant before searching his backpack and that they lacked the probable cause and exigent circumstances necessary for a constitutional search. The trial court denied the motion to suppress and found the defendant guilty. It sentenced him to 4 - 8 years’ incarceration followed by 18 months’ probation. The defendant appealed.

The Pennsylvania Superior Court Appeal

The Superior Court affirmed on appeal. The Court found that the officers did not need a search warrant because they were responding to an emergency. The defendant was incapacitated, incoherent, and may have been in the midst of a medical emergency. The police did not know who he was or what was going on, and he appeared to need help. Given that the police were trying to figure out who he was and what medical conditions he might have rather than looking for evidence, the police were performing under the community caretaking function.

This exception allows the police to conduct a search or seizure where necessary to help someone during an emergency. In other words, the police do not have to wait for someone to die of an overdose or other medical condition; they can perform basic searches in order to try to help someone.

Here, the Superior Court found that that was what the police were doing rather than searching for evidence. As they found the evidence while responding to the emergency, they did not have to ignore what was obviously incriminating.

Further, the Court concluded that the evidence was also subject to the search incident to arrest exception. Once they found the defendant with marijuana and a large sum of money, they had the right to finish searching him incident to arrest for possession of narcotics. Therefore, the Superior Court denied the appeal.

The Take Away

Ultimately, if you’re going to possess contraband and illegal weapons, it’s best to try to stay conscious and avoid needing medical attention while committing serious crimes. The case law is clear that the police can and probably should respond to help people with medical emergencies, and when the police are responding to an emergency in good faith, they usually do not have to obtain a search warrant. Exigent circumstances (a real emergency) are almost always an exception to the warrant requirement, and so the Superior Court denied the appeal. The defendant’s sentence will stand for now.

It was always unlikely that the court would grant a motion to suppress in this situation. Instead, the better defense was probably to argue that the contraband could have belonged to someone else. Perhaps the defendant’s companion, realizing that the defendant had become too intoxicated to function and that the police were on their way, took off and left the contraband behind rather than encounter the police and get arrested for possession themselves.

The Search Incident to Arrest Exception

Finally, there is some question regarding the search incident to arrest exception, however. The opinion does not make it totally clear where the bag was. If the bag was in fact outside of the car, then the exception likely applies. But if the bag was in the car, then that exception should not have applied. The search incident to arrest exception allows the police to search someone incident to arrest to make sure the person does not have any contraband or weapons, but it does not generally allow them to search a car for evidence.

The United States Supreme Court has held that it only allows a search of a motor vehicle where there is reason to believe the police will find more evidence of the offense of the arrest, but the Pennsylvania Supreme Court requires a search warrant for the search of the car unless the contraband is in plain view. This case probably does not change that analysis much because the case is somewhat confusing and the court relied primarily on the exigent circumstances, but that issue is something to watch.

Facing criminal charges or appealing a conviction? Give us a call.

Criminal Appeals Lawyer Zak T. Goldstein, Esquire

Zak Goldstein 10/27/23 Zak Goldstein 10/27/23

PA Superior Court: Failure to Return Lost Cell Phone After Fight May Be Theft

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Griffith, affirming the defendant’s conviction for theft of property lost, mislaid, or delivered where the defendant found the complainant’s cell phone on the ground after a fight and then threw it back on the ground instead of returning it.

The Facts of Griffith

The defendant and the complainant attended a Halloween party in York County. The complainant had a physical altercation with one of the defendant’s friends. The defendant and another person joined in, and they all fought the complainant. The fight ended, but later that night, another fight took place involving the complainant and one of the defendant’s family members at a different location. That fight also involved the defendant. That fight ended when the police came and arrested everyone.

The complainant eventually realized she had lost her iPhone. She called the phone, and the defendant answered. She called the phone again later, and no one answered. She called the defendant the next day through a social media app, and the defendant told her she was not getting the phone back, “it’s gone,” and “to press charges.” She then hung up. The complainant asked again if she could return the phone, and the defendant said, “no, it’s gone.” The Commonwealth played a recording of these calls in court.

The defendant testified in her own defense. She said that after the arrests for the second fight, she and her cousin found the ringing phone on the ground. At first, she thought it was hers because she and the complainant had the same phone. She picked it up, talked to the complainant, realized it was not her own phone, and threw it back on the ground. She had not seen it since. She did not feel responsible for the phone, but she did not think she had stolen it because she did not take it, keep it, or cause it to be on the ground outside.

The trial court convicted her of theft. The court sentenced her to one year of probation and restitution of $1,000 for the phone. The defendant appealed.

The Superior Court Appeal

On appeal, the defendant argued that the Commonwealth failed to present sufficient evidence because she did not have an intent to deprive the complainant of the phone. She interacted with the phone when she heard it ringing and thought it might be her phone, but she had no duty to return the phone to the complainant and was permitted to put the phone back where she found it. She argued that leaving the phone where she found it was a reasonable measure to return the phone to its owner and she had no duty to help the complainant find her phone. She also did not do anything to conceal the phone or make it harder for the complainant to find it.

The Superior Court rejected this argument and affirmed the conviction. The theft statute provides:

A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, with the intent to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to have it.

18 Pa.C.S.A. § 3924.

The court concluded that the defendant acted with the intent to deprive by putting the phone back on the ground. The court found intent both from the circumstances of the fight, the mean things the defendant said, and the fact that the defendant told the complainant to press charges. Similarly, the defendant’s actions were not reasonable. Instead of putting the phone somewhere safe, the defendant threw it back on the ground. Accordingly, the Court affirmed the conviction. One of the judges dissented, however, making it more likely that the Superior Court or Supreme Court will entertain additional appeals.

This case is concerning because it allows for criminal liability for a defendant who did not actually steal any property. The complainant lost her phone during a fight, the defendant was not responsible for it, and the defendant should not really have had any obligation to help the complainant recover her phone. The complainant also had access to the Find my iPhone application and could have tried to find it herself. Nonetheless, the court found that because the defendant picked up the phone, she had an obligation to return it. This creates a duty to act even for someone who did not cause the property to be lost. Hopefully, the defendant will pursue additional appeals.

Facing criminal charges or appealing a criminal case in Pennsylvania? 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.