A recent Pennsylvania Supreme Court case opinion reminds all lawyers, especially criminal lawyers and criminal appeals lawyers, of one of the most basic principles of law, and that is, the importance of proper investigation. Bald assertions without factual basis will almost always result in losing a case.
In Commonwealth v. Castro (2014), the PA Supreme Court ruled against a Philadelphia area man convicted of drug possession and conspiracy to sell drugs. The issue in that case was whether after trial, the defendant could get a new trial based on a newspaper article which alleged serious corruption on the part of the primary police officer in the case. In support of his motion for a new trial (Rule 720 Motion for a New Trial), the defendant attached a single newspaper article and nothing more.
The court ruled against the defendant in large part because the newspaper article did not cite any hard evidence. The court felt it was left to speculate as to what evidence existed showing that the police officer in Castro’s case was in fact, corrupt. Therefore, the court stated, “[W]e hold a motion must, at the very least, describe the evidence that will be presented at the hearing. Simply relying on conclusory accusations made by another, without more, is insufficient to warrant a hearing.”
WHAT CRIMINAL LAWYERS CAN LEARN FROM THE CASTRO CASE
The takeaway from the Castro case is the importance of developing facts and evidence. In any criminal appeals case, whether the issue is about newly discovered evidence or ineffective assistance of counsel, the key to winning is proper investigation. Trial counsel and appellate counsel must conduct thorough investigations in order to develop sufficient evidence to support a given claim. The Castro court made it a point to call out the lawyer for having failed to refer to actual evidence in the motion for a new trial. In the last footnote of the opinion, the court noted:
At argument, appellee’s counsel stated he had spoken with the reporters who authored the article and the FBI agents involved in the investigation, and he would offer them as witnesses; however, appellee’s motion did not mention these witnesses. Appellee was represented by different counsel on appeal due to the death of post-verdict counsel, and appellate counsel stated he would not call post-verdict counsel’s investigation into question, an understandable decision worthy of respect. This may explain matters, but it does not relieve appellee of his burden of averring to the existence of actual evidence in his motion.
Again, the key is investigation and presenting a factual basis. Let’s examine some key investigation issues in criminal appeals/PCRA cases.
NEWLY DISCOVERED EVIDENCE
Criminal appeals or PCRA petitions commonly raise claims of newly discovered evidence. When evaluating a claim for newly discovered evidence, Pennsylvania criminal appellate courts and PCRA courts will employ a 4 part test (see Commonwealth v. Pagan, a 2008 PA Supreme Court case):
(1) the new evidence could not have been obtained prior to trial by exercising reasonable diligence;
(2) the new evidence is not merely corroborative or cumulative;
(3) the new evidence will not be used solely to impeach a witness’s credibility; and
(4) the new evidence would likely result in a different verdict or outcome.
Whether it’s a murder case or a drug case, an appeal or a PCRA petition based on newly discovered evidence must be supported by hard evidence. Pennsylvania criminal law is clear on that point. Failure to produce sufficient evidence will result in denial of the claim.
INEFFECTIVE ASSISTANCE OF COUNSEL & INVESTIGATION
For ineffective assistance of counsel (IAC) claims, another very common claim raised in PCRA petitions in PA, a defendant has to show each of the following three elements:
(1) the claim of ineffectiveness of counsel has arguable merit;
(2) the lawyer’s actions were not reasonably designed to advance the interest of the defendant; and
(3) the defendant was prejudiced by the lawyer’s actions, i.e., but for his counsel’s actions, the result of the trial would have been different.
Succeeding in an IAC claim often requires a thorough investigation into the underlying issue. For instance, in a murder case involving a key eyewitness who disappeared before trial, it may be necessary to try to locate that witness and investigate the circumstances of the disappearance. If the witness is located with reasonable efforts, then the trial lawyer’s failure to find the witness is more likely to support an IAC claim.
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