Philadelphia Criminal Defense Blog

Zak Goldstein 5/12/22 Zak Goldstein 5/12/22

New Trial Ordered by PA Superior Court for Client Convicted of Sexual Assault

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

Criminal defense lawyer Zak T. Goldstein, Esquire, recently won a new trial for a client who had been convicted of involuntary deviate sexual intercourse in the Philadelphia Court of Common Pleas. In the case of Commonwealth v. G.W., the defendant was convicted following a jury trial on charges of allegedly molesting a girlfriend’s young daughter. The jury found him guilty, and the trial court sentenced him to a state prison sentence of thirty - sixty years’ incarceration. This would have been a life sentence for G.W.

Attorney Goldstein represented G.W. on appeal and was able to successfully convince the Pennsylvania Superior Court to overturn the conviction. At trial, the complainant had made a number of inconsistent statements about the details relating to the allegations - each time she was interviewed by the authorities, she had told markedly different stories about the illegal acts involved, where they allegedly took place, whether other people were home, and whether she had told anyone. It was also very clear that there were significant reasons for her to potentially fabricate the story. The jury, however, convicted in part due to highly improper testimony from one of the Commonwealth’s witnesses.

As a general rule, when a juvenile complainant makes an allegation that they have been the victim of some kind of crime in Philadelphia, the complainant is typically interviewed by forensic interviewers at the Philadelphia Children’s Alliance. The interviewers have some level of training on interviewing children regarding sensitive allegations, and the videos are recorded so that they can be reviewed by law enforcement and potentially used at trial. In this case, the Commonwealth called a supervisor from the Philadelphia Children’s Alliance to testify regarding the process that that agency uses for investigating these types of cases and conducting the interviews. The supervisor then confirmed that the complainant had undergone an interview and that the agency had recorded it. The Commonwealth then played the video-taped interview for the jury.

On cross-examination, the criminal defense attorney questioned the supervisor on whether the complainant had made a number of inconsistent statements both during the interview as well as to police officers and other witnesses. The supervisor confirmed that she had. On re-direct, without qualifying the supervisor as an expert witness, the Commonwealth then asked the supervisor if it was normal for children to have trouble giving consistent statements. Obviously taking the prosecutor’s hint, the supervisor immediately testified that this type of thing happens all of the time, that children have trouble remembering such traumatic events, and that as they become more comfortable, the stories often evolve. In other words, the supervisor suggested that the jurors should not concern themselves with the fact that the statements had changed repeatedly because such a thing is normal and perfectly consistently with a child complainant who is telling the truth.

Fortunately, the trial attorney objected to this improper expert testimony. The PCA supervisor had not been qualified as an expert witness to testify about the typical responses of alleged sexual assault victims, and the defense had not been provided with any notice that the Commonwealth would try to offer this type of testimony to explain away the wildly inconsistent statements which the complainant had made. The trial judge allowed the introduction of the testimony over the defense’s objection. Having been re-assured that it did not need to worry about the inconsistent statements, the jury convicted.

G.W. appealed. Attorney Goldstein argued to the Superior Court that the improper admission of this unqualified expert testimony had unfairly prejudiced the jurors against G.W. and that G.W. should receive a new trial. This testimony was not supported by any research, the supervisors qualifications were not provided to the defense, and the defense had not been given any notice that it would need to prepare to try to rebut this type of testimony. Had the defense been given notice, it could have considered retaining its own experts, doing additional research, and the defense could have prepared to cross examine the supervisor to show that this type of conclusion is not reliable. The Superior Court agreed. The Court recognized that testimony regarding the typical response of a sexual assault victim is clearly expert testimony and that such testimony is not necessarily admissible. Even in cases where this type of testimony may be admissible, the defense is entitled to notice and expert reports so that the defense can properly prepare for trial instead of being ambushed with unfair, unproven expert testimony. Accordingly, the Superior Court ordered that G.W. receive a new trial. The thirty to sixty year sentence has been vacated as a result of Attorney Goldstein’s successful arguments on appeal.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Lawyers — Philadelphia Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

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 new trials on appeal and in PCRA litigation for clients charged with crimes as serious as sexual assault and first degree murder. Pennsylvania criminal appeals are a complicated and highly technical area of the law, and just because a lawyer has defended clients at trial does not mean that they have the level of expertise and knowledge necessary to making winning arguments in the appellate courts. Our lawyers have that critical skill and experience. We 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 4/30/22 Zak Goldstein 4/30/22

PA Superior Court: Defendants Should Generally Be Allowed to Withdraw Guilty Pleas Before Sentencing

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

The Pennsylvania Superior Court has decided the case of Commonwealth v. Garcia, holding that sufficient evidence was presented to allow the defendant to withdraw his guilty plea. This decision is significant in multiple ways. First, the Court re-committed to the general rule that a defendant should usually be allowed to withdraw a pre-sentence guilty plea. Second, it also illustrates the importance of creating a thorough record at these types of hearings. In its opinion, the Superior Court highlighted the lack of details in the trial record, but the Court found that the defendant had presented enough evidence to have his guilty plea withdrawn. At the same time, it found the Commonwealth had done a poor job of showing why it would be substantially prejudiced if the defendant’s guilty plea was withdrawn. Because the prosecution did not make an adequate record, there was not enough evidentiary support to deny the defendant’s appeal.

Commonwealth v. Garcia

Easton police were called for a report of a sexual assault in progress. Upon arrival, they met with the complainant, who stated that her ex-boyfriend, the defendant, had climbed the exterior of her apartment building onto her deck and entered the residence through a sliding glass patio door without her consent. Once inside, he proceeded to force her to engage in sexual intercourse without her consent. She also had an active protection from abuse order against the defendant.

The police located the defendant, who was hiding in the bushes outside of her apartment building. The complainant was then taken to the hospital where she underwent a sexual assault examination kit that was sent to the Pennsylvania State Police Crime Lab to be analyzed. The defendant’s DNA came back as being seminal material found on the complainant’s vaginal swab. They also found the defendant’s DNA under the complainant’s fingernails because she had told the police she tried to defend herself while the assault was going on.

Before a trial date was even set, the Commonwealth and the defendant negotiated a guilty plea where the defendant would serve four to eight years’ incarceration followed by two years of reporting probation for the crime of sexual assault. The defendant then entered into the plea, but his sentencing was deferred to determine whether he qualified as a Sexually Violent Predator (“SVP”). Prior to his sentencing hearing, the defendant filed a motion to withdraw his plea in which he asserted his innocence. The Commonwealth opposed the motion, arguing that the defendant offered only a bare and implausible assertion of innocence given his incriminating statements shortly after the assault. The Commonwealth also argued prejudice, citing the difficulty the victim experienced in testifying at the preliminary hearing, her relief at learning of the defendant’s guilty plea, her anxiety at learning that the defendant wanted to withdraw his guilty plea, and the difficulty of finding another sexual assault expert because their expert had conducted the defendant’s SVP evaluation and therefore could no longer testify at trial. The Commonwealth claimed that were no other “local” experts.

The court held a hearing to determine whether or not the defendant should be allowed to withdraw his guilty plea. At the hearing, the defense moved the preliminary hearing transcript into evidence. The defendant argued that the transcript suggested that he had a viable consent defense. Specifically, he argued that transcript made clear that the he had a previous relationship with the complainant and that she had allowed him inside her residence a week before the alleged assault. The defendant did not testify at this hearing. At the conclusion of arguments, the trial court denied his motion to withdraw his guilty plea. The defendant then filed a second pre-sentence motion to withdraw his plea. This second pre-sentence motion was denied without a hearing. The defendant was subsequently sentenced, and he then filed a timely appeal.

Can a Defendant Withdraw a Guilty Plea Before He is Sentenced?

Yes, a defendant is permitted to withdraw a guilty plea before he is sentenced. However, there is no absolute right to withdraw a guilty plea. Trial courts have discretion in determining whether a defendant can withdraw his guilty plea, but such discretion is to be administered liberally in favor of the accused. Additionally, any demonstration by a defendant of a fair-and-just reason will suffice to support a grant, unless withdrawal would work substantial prejudice to the Commonwealth. A fair and just reason exists where the defendant makes a claim of innocence that is at least plausible. However, trial courts are also supposed to consider the timing and the nature of the innocence claim, along with the relationship of that claim to the strength of the government’s evidence. Finally, trial courts should also consider any ulterior or illicit motive by the defendant for withdrawing his guilty plea.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court vacated the defendant’s sentence and remanded his case back to the trial court so that he could have a trial. The Superior Court reviewed the record in this case, which it described as “poorly developed.” Nonetheless, the Superior Court found that the defendant made a prompt motion to withdraw his guilty plea and that the preliminary hearing notes did in fact establish that the complainant allowed the defendant inside her home a week before the alleged assault and that he had a prior relationship with her. According to the Superior Court, these facts established “more than the bare ‘makeweight’ assertion of innocence.”

Additionally, there was no strong evidence presented at the sentencing hearing to undermine the plausibility of the defendant’s consent defense. Further, this guilty plea was not entered on the eve of trial as no trial date had been set. Additionally, the Superior Court was unpersuaded by the Commonwealth’s argument that it would be substantially prejudiced by the withdrawal of the defendant’s guilty plea. In part, because the Commonwealth did not develop the record sufficiently enough to show how it would be prejudiced. As such, the Superior Court found that the defendant proffered a timely and plausible basis for withdrawing his guilty plea and therefore he will be able to go to trial on these charges.

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Zak Goldstein 2/25/22 Zak Goldstein 2/25/22

PA Superior Court: Sexually Violent Predator Determination May Not Be Made Based on Hearsay

The Pennsylvania Superior Court has decided the case of Commonwealth v. Aumick, holding that the Commonwealth may not use hearsay alone to prove that a defendant should be designated as a sexually violent predator (“SVP”). The Sex Offender Registration and Notification Act (SORNA) often requires defendants convicted of a sexually violent offense to be assessed on specific criteria to determine if they should be designated as an SVP. The court will then hold a hearing in order to determine the defendant’s status. In this case, the Superior Court rejected the proposition that the Commonwealth could rely only on hearsay testimony at an SVP hearing.

COMMONWEALTH V. AUMICK

The defendant pleaded guilty to one count of corruption of minors, resulting in a sentence of 18 months to 5 years in prison. This conviction required an assessment to determine if the defendant should be designated as an SVP. The Sexual Offenders Assessment Board (SOAB) assesses an individual with a criminal conviction. The assessment must consider a number of factors to determine if the individual has a mental abnormality or personality disorder that raises the likelihood of the individual engaging in sexually violent behavior. Such factors include whether the offense involved more than one victim; whether the individual exceeded necessary means to perform the offense; the nature of the sexual contact with the victim(s); the relationship between the defendant and the victim(s); the age of the victim(s); the extent of cruelty displayed by defendant during the offense; the defendant’s prior criminal history; whether the defendant fully completed prior sentence(s); whether the defendant participated in programs for sexual offenders; the defendant’s age; the defendant’s use of illicit drugs; whether the defendant suffers from a mental disability, mental illness, or other mental abnormality; any behavioral characteristics that relate to the defendant’s conduct; and any other factor that could relate to the defendant’s possibility of reoffending.

After the assessment is completed, the individual and district attorney receive of a hearing. The sentencing court must determine whether the Commonwealth can produce clear and convincing evidence that the individual should receive the designation of SVP at this hearing.

After the defendant’s guilty plea, the court ordered an assessment to determine whether the defendant should be designated as an SVP. Dr. Mary Muscari performed the assessment and concluded that defendant met the criteria. The report was sent to the Commonwealth, who forwarded a copy to the defendant and moved for a hearing.

The Commonwealth used Muscari’s testimony as the basis for their case. At the hearing, however, Muscari admitted that she considered only documents submitted by third parties. She testified that she formulated her opinion based on both the offense to which the defendant had pleaded guilty as well as the unproven allegations of the victim which were included in the charging documents. Muscari opined that the defendant had a pedophilic disorder, and he met the predatory criteria required due to the conduct he engaged in with his step-granddaughter. She claimed that the defendant was likely to reoffend even though the defendant had not committed prior sexual crimes.

Defense counsel counsel objected to Muscari’s opinion due to her claim that her assessment was partially based on allegations that to which the defendant did not plead guilty. Muscari also did not interview the defendant or the complainant for her assessment. Despite these objections, the trial court designated the defendant a sexually violent predator. Defense counsel appealed this decision, arguing the designation was based on hearsay related to allegations which were never proven because the defendant’s plea was not to all of the charges.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the trial court’s SVP designation. The Court concluded that Commonwealth v. McClelland set the precedent that hearsay alone is not sufficient evidence for a prima facie case at a preliminary hearing. If hearsay is not sufficient to hold a defendant for court at the preliminary hearing, then it is also not sufficient for establishing that a defendant is a sexually violent predator. As Muscari served as the only witness and did not provide any non-hearsay proof that the defendant was a sexually violent predator to support her conclusion, the Court determined that the Commonwealth failed to meet its burden of presenting clear and convincing evidence. Most importantly, the Court found that the doctor simply could not rely on hearsay evidence relating to unproven allegations. Had the doctor interviewed either the defendant or the complainant and learned firsthand of those claims, the doctor would have been in a position to decide whether or not to consider them. But here, the expert relied entirely on the hearsay contained in charging documents. Accordingly, the doctor’s opinion was not based on competent evidence, and the Court reversed the trial court’s decision.

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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.