Philadelphia Criminal Defense Blog

Zak Goldstein 5/27/24 Zak Goldstein 5/27/24

PA Superior Court: Tender Years Exception Does Not Necessarily Apply to Hearsay-Within-Hearsay

Criminal Defense Attorney Zak Goldstein — Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Copenahver, holding that the trial court improperly admitted video statements given by the complainants in this case because the video statements contained hearsay-within-hearsay. The court nonetheless affirmed the defendant’s conviction because the evidence was overwhelming, and the court believed he would have been convicted even in the absence of the inadmissible portions of the statements.

The Facts of Copenhaver

In Copenhaver, the defendant was charged with sexually assaulting his daughters, K.G. and C.C. The Commonwealth charged him with rape, involuntary deviate sexual intercourse, production of child pornography, and related charges. Copenhaver went to trial, and the prosecution introduced both the in-court testimony of the complainants as well as videotaped statements they had given at the York County Child Advocacy Center (CAC). The court admitted the CAC statements under the “tender years” exception to the hearsay rule. The Commonwealth also introduced evidence that the defendant had threatened to commit suicide as well as admitted to taking and deleting nude photos of the complainants. The jury convicted the defendant, and he received a lengthy state prison sentence. He appealed.

The Superior Court Appeal

The defendant had court-appointed counsel, and in his initial appeal, his court-appointed attorney submitted an “Anders brief.” An Anders brief is a letter to the Superior Court informing the court that the attorney believes the defendant has no legitimate issues for appeal and the appeal should be dismissed. In order to comply with the rules, the attorney must identify any potential issues and explain why they would not result in a successful appeal. It is inconceivable that there could have been no legitimate issues for appeal following a jury trial involving two child sex assault complainants, and the Superior Court in fact reviewed the transcripts and found that the court-appointed attorney should have raised at least one claim relating to whether the videotaped statements were properly admitted at trial. Accordingly, the Superior Court rejected the Anders brief and directed the appellate attorney to file a real brief on the admissibility of the videotaped statements.

The lawyer filed a new brief challenging the sufficiency of the evidence and the admissibility of K.G.’s videotaped statement under the tender years exception to the hearsay rule. The sufficiency challenge failed - the complainants both testified that the defendant raped them, and the jury was free to believe that evidence and find him guilty.

The video tape issue, however, required more extensive analysis as it had some merit. In most sexual assault prosecutions involving minor complainants, the prosecution team will have the complainant interviewed at some sort of quasi-independent children’s advocacy center. In Philadelphia, this organization is called Philadelphia Children’s Alliance. In many counties, it is called the Children’s Advocacy Center. In Montgomery County, it is called Mission Kids. Instead of having a detective interview the complainant, a social worker with some training in conducting “forensic interviews” will conduct a videotaped interview to try to determine what happened and evaluate the allegations. The questions are supposed to be neutral and non-leading in the hopes of avoiding planting ideas in the complainant’s head, but in practice, the questions are often leading, and the interviewers work very closely with the assigned detective. That detective will typically be standing outside the interview watching through a one-way mirror.

What is the tender years exception to the hearsay rule?

Pennsylvania and most other jurisdictions have a “tender years” exception to the hearsay rule. Section 5985.1 of the Judicial Code, referred to as the “tender years” exception to the hearsay rule, provides as follows:

§ 5985.1. Admissibility of certain statements
1. General rule.
(1) An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses enumerated in paragraph (2) [including, inter alia, 18 Pa.C.S.A. § 6312(b)], not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if:
(i) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and
(ii) the child either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness.
42 Pa.C.S.A. § 5985.1(a).

In 2021, the legislature raised the age from 12 to 16. The old rule with the younger age was still in effect at the time of this case.

Thus, the rule allows for hearsay statements to be admissible into evidence in cases involving rape charges and other similar offenses so long as the complainant either testifies or is unavailable as a witness. In a civil case, unavailability may include a finding that the child will have trouble testifying due to feeling emotional distress. In a criminal case, however, the complainant generally must testify because these statements have been deemed to be testimonial for confrontation clause purposes. There are three main ways for the defense to challenge the admissibility of the statements: First, the defense could argue that the statement is not relevance or reliable. Second, the defense can generally exclude the statement if the complainant does not testify. Third, the defense could argue that there is some other evidence in the statement which is not admissible such as hearsay-within-hearsay or a prior bad act under Rule 404(b).

In this case, one of the complainants gave a statement in which she said that the other complainant disclosed some of the abuse to her. Thus, the initial complainant’s statement was admissible under the tender years exception, but the statement inside that statement from the other complainant was hearsay. That portion of the statement should not have been admitted, but the trial court admitted all of it. The statement was not admissible because the trial court made no finding that the statement was actually reliable. Otherwise, it may have been admissible under the tender years exception, as well. Thus, the trial court erred in simply admitting the entirety of the statements without conducting a reliability assessment.

Nonetheless, the Superior Court affirmed. It found that the evidence was overwhelming and the defendant would have been convicted anyway. The statements were basically cumulative of what the complainants said in court and in their own videotaped statements. Accordingly, although the Superior Court made the court-appointed lawyer do a lot of extra result by rejecting the Anders brief and requiring briefing of the issue, the Superior Court ultimately ruled against the defendant, anyway. The case, however, highlights some of the ways that the defense may challenge the admission of these videotaped PCA or CAC statements.

Facing criminal charges or appealing a criminal case in Pennsylvania?

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 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.

Zak Goldstein 5/25/24 Zak Goldstein 5/25/24

Attorney Goldstein Obtains Reduced Sentence for Client Following Successful Appeal in Drug Case

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, recently obtained a significantly reduced sentence for a client following a successful Superior Court appeal in a drug case. In the case of Commonwealth v. M.F., the defendant went to trial with a different attorney in Blair County on charges of drug delivery resulting in death, possession with the intent to deliver, recklessly endangering another person, criminal use of a communications facility, and possessing a controlled substance. The jury acquitted the defendant of drug delivery resulting in death, but it found him guilty of PWID and related charges. The trial judge then sentenced him to 17.5 - 35 years in prison for the conviction on PWID and the other charges even though he was acquitted of homicide.

The client retained Attorney Goldstein, and Attorney Goldstein appealed to the Pennsylvania Superior Court. The Superior Court vacated the sentence, finding that it was excessive because it far exceeded the sentencing guidelines in effect at the time of the offense. The Court remanded the case back to the trial judge for a new sentencing hearing. Attorney Goldstein continued to represent M.F. for sentencing. By the time of sentencing, M.F. had been in custody for about six years, so Attorney Goldstein requested a total sentence of roughly 6 - 12 years’ incarceration so that M.F. would be eligible for parole. The trial court agreed with the defense’s recommendation and re-sentenced M.F. as requested by the defense. Accordingly, this successful appeal resulted in a sentence reduction from 17.5 - 35 years to 6 - 12 years, and M.F. will now be eligible for parole.

Facing criminal charges or appealing a criminal case in Pennsylvania?

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

Zak Goldstein 5/25/24 Zak Goldstein 5/25/24

PA Superior Court: Statements Made to Constables May Be Suppressed for Lack of Miranda Warnings

The Pennsylvania Superior Court has decided the case of Commonwealth v. Seeney, holding that statements made to constables during a custodial interrogation may not be admissible in court unless the constable first gave Miranda warnings.

The Facts of Seeney

In Seeney, the defendant was charged with attempting to possess a firearm as a prohibited person in violation of § 6105 and two counts of making a false statement in connection with the purchase of a firearm in violation of 18 Pa.C.S. § 6111(g)(4). The police arrested the defendant, and he was held in custody at the Bucks County Correctional Center.

The defendant was scheduled for his preliminary hearing in 2022. In the suburban counties, preliminary hearings take place at the office of a Magisterial District Justice. Sheriffs transport prisoners to preliminary hearings in Philadelphia and for other hearings in the Court of Common Pleas in the counties, but magistrates use constables for prisoner transportation. In this case, a constable transported the defendant to the magistrate’s office for his preliminary hearing. The constable had no real involvement in the case and did not particularly care about it, but in making conversation with the defendant, he asked the defendant what he was charged with. The defendant then told the constable that he had tried to buy a gun despite being prohibited from doing so.

The constable did not give the defendant Miranda warnings during this conversation and likely would not have told anyone what the defendant said. Unfortunately for the defendant, a police detective happened to overhear it. The detective then called the constable the next day and asked the constable to give a formal statement about what the defendant said to him, and the constable would have then been a witness for the Commonwealth at trial.

The Motion to Suppress

Prior to trial, the defendant moved to suppress the incriminating statement made to the constable because the constable never gave him Miranda warnings. The trial court granted the motion to suppress, and the Commonwealth appealed.

The Superior Court Appeal

On appeal, the Commonwealth argued that the constable was not required to provide Miranda warnings because 1) he did not actually interrogate the defendant and 2) he was not a law enforcement officer like a police officer or detective. The Superior Court rejected both arguments. First, it found that the constable’s questioning was clearly an interrogation. By asking the defendant about his court appearance, the constable asked questions which were reasonably likely to elicit an incriminating response. The constable’s purpose in asking the questions - that he was just making conversation - did not matter. Instead, the test is whether the questions themselves were likely to elicit an incriminating response. Second, the court found that it was irrelevant that the constable was not actually a police officer or sworn law enforcement officer. Constables provide transportation to court for the magistrate. In order to do so, they physically restrict a prisoner’s movements both by locking them in their transport vehicle and in holding cells, and by guarding them while armed with a firearm. This creates a custodial setting no different than being transported by a sworn police officer, and the constables do this on behalf of the government. Accordingly, the fact that the constable was not actually a police officer was irrelevant - it was still a custodial interrogation conducted by a state actor.

When do the police have to give Miranda warnings?

The police only have to give a defendant Miranda warnings when they are going to conduct a custodial interrogation. If the police fail to give Miranda warnings, then any statement obtained may not be used against the defendant. The failure to give Miranda warnings does not automatically result in the dismissal of a case. Instead, it would only result in the suppression of a statement if the police took a statement. Accordingly, if the police do not want to take a statement or do not care if the resulting statement is going to be admissible, then they do not have to give Miranda warnings.

Here, the defendant was obviously in custody - he was being held at the Bucks jail and transported by an armed constable, and the constable asked him questions which were likely to result in incriminating admissions. The constable worked on behalf of the government, so this amounted to a custodial interrogation which required Miranda warnings. The Superior Court therefore upheld the trial court’s order granting the motion to suppress the confession.

The ruling here seems pretty obvious, so it is somewhat surprising the prosecution appealed. The case provides a good illustration of when Miranda warnings are required, however.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Zak Goldstein 5/22/24 Zak Goldstein 5/22/24

Attorney Goldstein Argues Before PA Supreme Court in Harrisburg

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire recently argued before the Pennsylvania Supreme Court in Harrisburg, PA. In the case of Commonwealth v. Muhammad, the Court granted review on the following question:

Was the evidence insufficient to support Petitioner’s conviction for firearms not to be carried without a license, 18 Pa.C.S. § 6106, where the jury made a specific factual finding that Petitioner did not possess a firearm in response to a special interrogatory to which all parties and the trial court had agreed?

In Muhammad, the police arrested the defendant after finding a gun in the center console of a car to which multiple people had access. Prosecutors charged him with possession of a firearm by a prohibited person in violation of 18 Pa.C.S. § 6105 and carrying a concealed firearm in violation of 18 Pa.C.S. § 6106. The case law holds that a felon in possession charge under § 6105 must be bifurcated from other charges and heard after the other charges have been decided. § 6105 must be bifurcated because in order to prove a violation of § 6105, the Commonwealth must introduce evidence of the defendant’s criminal record. This evidence obviously makes it very difficult for the jury to remain impartial. Once the jurors have heard that the defendant has a felony conviction, they are much more likely to convict. Therefore, trial courts throughout the state will usually conduct the trial without telling the jury about the § 6105 charge first, and then once the jury has reached a verdict on the other charges, hold a mini-trial just on the § 6105 charge at which the Commonwealth will tell the jury about the defendant’s criminal record and then ask the jury to make a decision on that case. This procedure avoids the issue of the jury becoming prejudiced against the defendant after learning that they have a record.

In this case, however, the trial court decided to use a placeholder interrogatory on the possession of a firearm. The parties agreed that instead of completely bifurcating the offense, the jury would receive an instruction on the definition of actual and constructive possession and then be asked whether the defendant possessed a firearm. If the jury answered yes, then the judge would find the defendant guilty of § 6105. If the jury answered no, then the judge would find the defendant not guilty. All parties agreed to this unusual procedure. The judge accurately instructed the jury on the definition of possession, and the jury answered “no” to an interrogatory on whether the defendant possessed and controlled a firearm. The case took a bizarre turn, however, when the jury then convicted the defendant of carrying a concealed firearm without a license.

Carrying a firearm without a license in violation of § 6106 requires possessing the firearm – so the interrogatory answer and the verdict are impossible to reconcile. If the defendant did not possess a firearm, then he could not have carried one for § 6106, and the evidence was therefore insufficient. The trial court and Superior Court, however, both found that the inconsistency was acceptable because Pennsylvania law allows for inconsistent verdicts in most situations.

Attorney Goldstein sought review in the state Supreme Court because this situation is different. The jury’s response to the interrogatory was not a verdict. Instead, it was a specific factual finding – that the defendant did not possess a gun – which negated an element of the offense for which he was convicted. Therefore, the lower courts should have entered a judgment of acquittal because the evidence was insufficient.

The Supreme Court granted review on whether inconsistent interrogatories should be treated differently from inconsistent verdicts, and Attorney Goldstein argued the case in Harrisburg last week. The Court will now likely make a decision within the next few months, and this could be a particularly important decision as trial courts have increasingly relied on interrogatories in the last few years since the United States Supreme Court found in Alleyne and Apprendi that any elements which could increase a maximum penalty or impose a mandatory minimum must be submitted to the jury.

The audio from the argument is available through the Court on Youtube here: https://www.youtube.com/live/NLbu2tIk_S4?si=gpNc7d5o1MYhQnsL&t=15566

Video of the 5/14/24 argument is available here: https://pcntv.com/pennsylvania-politics-and-policy/pa-courts/pa-supreme-court/