Philadelphia Criminal Defense Blog
PA Superior Court Explains When Ineffective Assistance Claims May Be Raised on Direct Appeal
Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. Watson, dismissing the defendant’s appeal because the defendant improperly tried to raise ineffective assistance of counsel claims prematurely through post-sentence motions and on appeal rather than by filing a Post-Conviction Relief Act Petition. The Superior Court held that the trial court abused its discretion in allowing the defendant’s claims of ineffective assistance of counsel to be reviewed in post-sentence motions rather than in a PCRA petition.
The Facts of Watson
The defendant appealed to the Pennsylvania Superior Court after he was convicted by a jury of rape and other related sex crimes. The conviction stemmed from the alleged sexual abuse of the defendant’s stepdaughter. She said that the abuse started when she was eleven and ended when she was seventeen. Prior to sentencing, the defendant retained new counsel, and trial counsel withdrew his appearance. The trial court sentenced the defendant to 27-60 years in prison and found the defendant to be a sexually violent predator.
The defendant’s new attorney filed a post-sentence motion and eventually an amended post-sentence motion. The motion raised claims of ineffective assistance of trial counsel, which usually need to be deferred until after a direct appeal has concluded. The amended post-sentence motion concluded with the statement, “[Defendant] has been advised that in raising ineffectiveness now, he waives the right to raising [sic] issues of merit on direct appeal.”
The trial court held an evidentiary hearing on the defendant’s motion. At the hearing, the Court did not really address whether it was appropriate to hear ineffective assistance claims in the post-sentence motions rather than defer any such claims until after the direct appeal had concluded. Instead, new counsel immediately called the defendant to the stand and asked the following preliminary questions:
[Defense Counsel]: [Defendant], before we go any further, I’ve advised you that in your [amended] post[-]sentence motion that you’re raising ineffectiveness of counsel, correct?
[Defendant]: Yes.
[Defense Counsel]: And I’ve advised you that raising it in your [amended] post[-]sentence motion means that the Superior Court of Pennsylvania will not, you’re not going to be raising questions of merit. Do you remember that?
[Defendant]: Yes.
[Defense Counsel]: Okay. And I’ve advised you that you have to make a choice of doing one or the other and you chose to raise ineffectiveness of counsel, correct?
[Defendant]: Yes.
[Defense Counsel]: Okay. And nobody’s forced you. You’re making this decision voluntarily, correct?
[Defendant]: Yes.
The trial court denied the amended post-sentence motion, and the defendant appealed to the Pennsylvania Superior Court. All of the issues that the defendant raised in the Superior Court related to the allegations that he received the ineffective assistance of counsel which he had asserted in his post-sentence motions. The Superior Court began by addressing whether it was appropriate for the Court to deal with claims relating to the ineffective assistance of counsel on direct appeal instead of in a PCRA petition. The Court also addressed the related claim of whether it was proper for the trial court to hear the ineffective assistance claims in a post-sentence motion rather than a PCRA.
The Superior Court’s Decision
The Superior Court provided a helpful summary of when PCRA/ineffective assistance of counsel claims should normally be raised. In general, PCRA claims such as claims that the lawyer provided the ineffective assistance of counsel should not be raised until PCRA proceedings, and a PCRA petition must be filed either after the direct appeal has concluded or instead of a direct appeal. Trial courts usually should not entertain claims of ineffectiveness in post-sentence motions, and therefore, those claims should not ordinarily be raised on direct appeal. There are exceptions to this rule, however. A defendant may raise an ineffective assistance of counsel claim right away in the following scenarios:
(1) an extraordinary case where the trial court, in its discretion, determines that a claim of ineffectiveness is both meritorious and apparent from the record so that immediate consideration and relief is warranted; or
(2) when the defendant raises multiple, and comprehensive, ineffectiveness claims, which the court, and for good cause shown, determines that post-verdict review is warranted, and the defendant waives his right to PCRA review; or
(3) if the defendant is statutorily precluded from obtaining subsequent PCRA review, the trial courts must address claims challenging trial counsel’s performance.
The first exception is for claims that are so strong and so obviously likely to be granted that it would be an injustice to defer them until PCRA review. The second exception typically applies to a defendant who receives a short sentence or no sentence. The PCRA requires that a defendant still be in custody or under probation supervision in order for the court to have jurisdiction, so a defendant who receives a short sentence typically will not be able to file an appeal and then litigate a PCRA petition because the sentence will have expired.
Here, the Court found that none of the exceptions applied.
With respect to the first exception for extraordinary claims, the Court found that because the trial court needed to schedule an evidentiary hearing to determine the merits of the claim, the claim was not apparent from the record. In other words, if the claim were so strong and so obvious that it should be resolved immediately, then it would not have been necessary for the trial court to hold a hearing. The court would have been able to just grant it from the record.
In addressing the second exception, the Court ruled that the defendant failed to argue that he had good cause for raising his ineffective assistance of counsel claims in a post-sentence motion, and the trial court did not make a finding of good cause for him to do so. Most importantly, the Superior Court found the defendant did not make a knowing waiver of his right to PCRA review. The Superior Court opined that the defendant’s attempted waiver of his right to file PCRA claims was based on new counsel’s misinterpretation of the relevant case law. Instead of asking if the defendant agreed to waive the right to litigate a PCRA after the conclusion of the direct appeal, the new attorney asked the defendant if he agreed to waive the right to raise normal appellate issues of trial court error. In order for the colloquy to be correct, the lawyer would have to ask the defendant if he agreed to waive his PCRA rights, not his direct appeal rights. It is possible to raise both ineffective assistance of claims and regular direct appeal claims in cases where the waiver is executed properly or in cases where the first exception for extraordinary claims applies. The Court did not address the third exception as the defendant was not statutorily precluded from obtaining subsequent PCRA review.
Ultimately, the Superior Court concluded that the trial court abused its discretion in allowing the defendant to address his premature ineffective assistance of counsel claims in the post-sentence motions. The Court therefore dismissed the appeal without prejudice for the defendant to file a timely PCRA petition and raise those claims. Procedurally, the Court probably should not have actually dismissed the appeal. The appeal was properly filed, it just raised claims that were not cognizable at this stage. Therefore, the Court should have simply affirmed. This wording, however, will likely not make a significant difference for the defendant as he will still be able to raise his claims by filing a PCRA petition. Either way, it is important to understand these exceptions and make sure you retain a lawyer who understands them if you want to raise a claim of ineffective assistance of counsel before filing a direct appeal. In most cases, it makes sense to do the direct appeal and then litigate a PCRA petition, but in some cases, the PCRA claims are so strong or the sentence is short enough that it makes sense to claim that trial counsel was ineffective right away.
Facing criminal charges or appealing a criminal case in Pennsylvania? We can help.
Goldstein Mehta LLC - Philadelphia Criminal Defense Attorneys
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.
Can prosecution witnesses testify by video? Sometimes.
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
In most cases, witnesses in criminal cases may not testify by video. This is particularly true for the prosecution as the defendant has a confrontation clause right to confront their accusers, and the appellate courts have held that that right includes the right to cross-examine witnesses face-to-face in the courtroom. The legislature, however, has provided that under certain circumstances, child witnesses may testify by video from somewhere else in the courthouse in a different room from the defendant. In the recent case of Commonwealth v. Lamont, the Superior Court upheld the defendant’s convictions for sexual assault charges and held that the trial court properly allowed the child complainant to testify contemporaneously via video.
The Facts of Lamont
In 2019, the complainant told her grandmother that the defendant, her grandmother’s boyfriend, had molested her. The complainant lived near the grandmother’s house, and the defendant would sometimes babysit the complainant while the complainant’s mother was at work. The grandmother confronted the defendant. He admitted to touching the complainant but claimed it was an accident. He promised to apologize. (This is a good example of why it is best to just remain silent when confronted with criminal allegations. Claiming that touching someone inappropriately was an accident is generally not going to help your case.)
After the defendant apologized to the complainant, the complainant told the grandmother the defendant had in fact molested her several times rather than just once. Again, the grandmother confronted the defendant. This time the defendant just stood there. The grandmother left for work, and the defendant left the home with all his belongings. The grandmother then contacted the police.
The defendant called the grandmother and begged her not to press charges. He apologized, threatened to commit suicide, and claimed he did not know why he molested the victim. (Again, this is incredibly damaging for a criminal case.) The grandmother put the call on speakerphone, and the complainant’s mother and her best friend overheard the conversation.
Prosecutors inevitably filed serious sexual assault charges against the defendant. Despite confessing to everyone, he proceeded by way of jury trial. Prior to the jury trial, the Commonwealth file a motion under 42 Pa.C.S. § 5985 notifying the defendant of its intention to have the complainant testify via video. The trial court held a hearing granting the Commonwealth’s motion and granted it. The complainant testified at trial via video. The jury convicted the defendant of serious Megan’s law offenses, and the defendant appealed.
Did the trial court properly let the complainant testify by video?
The defendant raised a number of issues on appeal, but the most interesting was his challenge to the trial court’s decision to allow the child complainant to testify via video. Pennsylvania law sometimes allows for child complainants to testify in a room other than the courtroom and have that testimony transmitted contemporaneously via video.
Prior to allowing a child victim to testify via video, however, the court must hold a hearing in open court or in camera and allow the parties to present evidence. Based on the evidence, the court must make a decision as to whether testifying either in an open forum in the presence of the fact finder or in the presence of the defendant will result in the child complainant suffering serious emotional distress that would substantially impair the child victim’s ability to reasonably communicate. In making this determination the court may observe the child complainant inside or outside the courtroom and/or hear testimony from a parent or custodian. Serious emotional distress does not just mean that the child will be upset. It does have a specific definition which deals with whether it will impair the child’s ability to communicate.
In this case, the defendant objected to the video testimony and argued that the complainant’s fear was not testifying in front of the defendant. Instead, the defense argued that the complainant’s real fear was that no one would believe her. The defendant claimed the complainant’s hesitance to testify in front of him came from speaking about a traumatic event, not from having to testify in open court, and therefore that the Commonwealth did not show the complainant would be unable to reasonably communicate in his presence.
The Superior Court’s Decision
The Superior Court approved of the trial court’s decision to allow the contemporaneous video testimony. The Superior Court relied on the record from the pre-trial hearing in the courtroom at which the mother and complainant testified. The Court noted the mother’s testimony regarding the changes in her daughter’s behavior after disclosing the incidents. Specifically, the mother testified that her daughter, the complainant, used to be involved in numerous sports and that she no longer participated in any of them. She said the complainant’s temperament changed from “very quiet” to “attacking” and explained the complainant had been nervous about testifying in front of the defendant. She stated the complainant had a “sigh of relief” when the mother told her she could testify by video.
Further, the Superior Court noted the victim’s testimony explaining that it was important when she gave a statement previously that the defendant was not there because it made it easier for her to focus on her testimony and not on the defendant.
In making its decision, the Superior Court noted that the trial court had the opportunity to observe the changes in the complainant’s demeanor and body language when she thought of testifying in front of the defendant. It believed the trial court had the best opportunity to assess the complainant’s state of mind in the context of the entire circumstances surrounding the proceeding before making its decision. The Court found the trial court’s on-the-record observations supported its finding that the defendant’s presence would have caused serious emotional distress and impaired the victim’s ability to communicate in the courtroom. Further, the Court found that the defendant suffered no prejudice because the trial court instructed the jury that video testimony is not out of the ordinary. Therefore, the Court affirmed the defendant’s conviction.
It is important to note that the video testimony must be contemporaneous and subject to cross-examination. Pre-recorded testimony is almost never allowed, and the defense must still have the opportunity to cross-examine a complainant. The video must also work - if there are issues with the connection, the quality of the audio or video, or the ability for the jury to hear and see the complainant, then that could be the basis for a challenge to this type of testimony, as well. Ultimately, this rule undermines a defendant’s right to confrontation. The whole purpose of subjecting witnesses to cross-examination live in the courtroom is to see if they will stick to their story when they have to face the accused. Indeed, that is the very definition of confrontation, and allowing witnesses to testify to a camera rather than the jury makes it easier for them to lie. Nonetheless, for now, the courts have approved of this type of video testimony for at least some juvenile alleged victims.
Facing criminal charges or appealing a criminal case in Pennsylvania? We can help.
Philadelphia Criminal 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.
PA Superior Court: Trial Judge May Ask Each Potential Juror if They Would Be Able to Convict Based on Complainant’s Testimony Alone
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. Walker. The Court held that a trial court may allow prospective jurors to be asked, during the voir dire process in a sexual assault case, if they could follow the legal principle that the testimony of an alleged victim standing alone, if believed, is sufficient proof to find the defendant guilty beyond a reasonable doubt. Jurors often receive an instruction similar to the question prior to deliberations, and many judges routinely ask this question prior to trial. However, this is the first time an appellate court in Pennsylvania has specifically held that it is appropriate for the trial judge to question each juror on whether they’d be able to follow that instruction, which reminds them that no evidence other than someone’s statement is required to convict, as part of jury selection.
The Facts of Walker
The complainant, who was eighteen-years old at the time of the trial, testified that in 2013, her mother was dating the defendant. The defendant would babysit the complainant and her infant sister while their mom was at work. She testified that the defendant would come into her room and sexually assault her. The defendant did this every other day. The victim told her mother and grandmothers. She also told her doctor. Her doctor tested her for STDs, and the test was positive. The complainant’s mother did not believe her and became angry with her. The complainant also disclosed to one of her teachers when she was sixteen years old.
The complainant testified that she remembered participating in a forensic interview, and she claimed at trial she had told the interviewer about the abuse. The defense played the video of the interview, however, and it showed that she had actually denied that the abuse occurred. After being confronted with that inconsistency, she insisted that she did not disclose the abuse at the time because she was afraid.
The complainant’s grandmother and her high school teacher also testified that the complainant disclosed the abuse to them.
Prosecutors charged the defendant with various sex crimes in 2019. He proceeded by way of jury trial and was found guilty. The trial court sentenced him to 30.5 - 61 years’ incarceration. He appealed.
The Superior Court Appeal
On appeal, the defendant challenged the jury selection process. Specifically, the court asked each juror the following:
Under Pennsylvania law, the testimony of the alleged victim standing alone, if believed by you, is sufficient proof upon which to find the defendant guilty in a sexual assault case. Thus, you may find the defendant guilty if the testimony of the alleged victim convinces you beyond a reasonable doubt that the defendant is guilty. Would you be able to follow this principle of law?
The defendant argued that this question was improper. It conditioned the jurors to find him guilty without any other evidence other than the complainant’s testimony that he committed a sexual offense.
The Superior Court’s Decision
The Superior Court rejected this claim on appeal. It ruled the question was proper and trial courts have broad discretion when conducting voir dire. The Court disagreed with the defendant as to the purpose of the question. The Court found the question was aimed at identifying potential jurors who held fixed beliefs that would not be compatible with Pennsylvania law if they were unable to set aside those beliefs. The Court also found the question to be phrased properly as it identified the beyond a reasonable doubt standard as well as language from the statutory provision codifying the principle of law that oral testimony is almost always enough to convict if a crime so long as the testimony is believed by the jurors beyond a reasonable doubt. Further, the Court found that any issue with the voir dire question was cured by the trial court’s instructions explaining that the Commonwealth had the burden of proving each and every element of the crimes charged beyond a reasonable doubt.
Therefore, the Superior Court denied the appeal. It also ruled that the trial court properly sentenced the defendant, did not consider any improper factors during sentencing, and did not impose an excessive sentence.
This jury instruction is tough for the defense. Jurors do not have to convict in the absence of any corroborating evidence, but Pennsylvania law is very clear that they may convict based on testimony alone so long as they believe the testimony beyond a reasonable doubt. Many potential jurors are surprised to learn this and express that surprise when asked this question even if they believe they would be able to follow the instruction. The prosecution is then easily able to strike those potential jurors from the panel, making it more difficult for the defense to get jurors who would want to see some corroborating evidence before convicting based on oral testimony. It is important for the defense to follow up during jury selection or arguments and stress that jurors never have to convict based solely on testimony. They are free to disbelieve the testimony, and if they’re on the fence, they are free to insist on more evidence. The Superior Court, however, has now approved of asking each juror this question during jury selection.
Facing criminal charges or appealing a criminal case in PA? We can help.
Philadelphia Criminal 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.
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?
Philadelphia Criminal Defense Attorney 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.