Posted On: February 29, 2012

Pennsylvania Spousal Privilege Against Testifying Applies Even to a “Collusive Marriage”

A jury convicted Appellant Lewis of tampering with public records or information, 18 Pa.C.S.A. § 4911. Ms. Lewis had worked as a Probation Officer for the Lebanon County Office of Adult Probation. In August 2007, Appellant started supervising the probation of Jeffrey Gardner, who was on electronic monitoring. In December 2007, while Appellant was supervising Mr. Gardneŕs probation, they began an intimate relationship and made plans to travel together to Atlantic City during the weekend of February 17, 2008. On February 12, 2008, Appellant released Mr. Gardner from electronic monitoring, eleven days ahead of schedule of his six-month period of court-ordered electronic monitoring. Part of Appellant́s duties required her to maintain case files on the probationers she was supervising and to make notations of their progress, plans, and whereabouts. Shortly before their planned trip to Atlantic City, Appellant wrote a note in Mr. Gardneŕs file stating he was visiting Atlantic City with his family, as the Appellant did not want anyone to know that she and Mr. Gardner were actually traveling together. Appellant left her job with the Lebanon County Office of Adult Probation and Parole on February 25, 2008.

Probation Officer Fertenbaugh then took over the supervision of Mr. Gardner. In March 2008, Ms. Fertenbaugh learned about the romantic relationship between Appellant and Mr. Gardner. Mr. Gardner came to the probation office where he admitted his relationship with Appellant. When asked, Appellant confirmed the truth of Mr. Garneŕs statements.

On March 28, 2008, the Commonwealth charged Appellant with tampering with public records or information and obstructing administration of law or other governmental function. Appellant and Mr. Gardner were married on June 17, 2008. Appellant filed an omnibus pre-trial motion to preclude the Commonwealth from calling Mr. Gardner to testify at trial, based on the Section 5913 spousal testimony privilege. The Commonwealth argued the Section 5913 spousal testimony privilege should not apply in this case because Appellant and Mr. Gardner married so Mr. Gardner would not have to testify as a witness against Appellant.

The trial court judge concluded that Section 5913 was unavailable to Mr. Gardner if he had married Appellant to avoid testifying against her. The trial court reasoned that a marriage timed even partly to prevent testimony was "collusive" under Pennsylvania law. Thus, the court barred Mr. Gardner from asserting the Section 5913 spousal testimony privilege at Appellant́s trial. The jury found the Appellant guilty of tampering with public records or information but not guilty of obstructing administration of law or other governmental function.

On appeal, the Appellant successfully argued that the trial court́s interpretation of Section 5913 ignored the unambiguous language of the statute and was inconsistent with the Pennsylvania rules of statutory construction. Notably, neither the statute nor the exceptions eliminate or limit the privilege for collusive marriages or pre-marriage events or actions. The statutory text of Section 5913 is clear in this instance, and any public policy concepts arguably implied in the statute are irrelevant. Thus, the Court refused to adopt the trial court́s rationale for creating an exception to the spousal testimony privilege for a "collusive" marriage on policy grounds and also rejected the trial court́s conclusions regarding the applicability of Section 5913 under the circumstances of this case.

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Posted On: February 22, 2012

Superior Court of Pennsylvania Rules that Prosecution Cannot Use a Defendant’s Silence to Prove That He is Guilty of Murder

The Superior Court of Pennsylvania reversed a Defendant’s homicide conviction in the case of Commonwealth of Pennsylvania v. Michael Molina, Appellant. Molina appealed from the judgment of sentence entered in the Court of Common Pleas of Allegheny County, Criminal Division (Pennsylvania), following his conviction for murder in the third degree and unlawful restraint. The victim in the case was a woman named Melissa Snodgrass.

On appeal, Molina raised one issue for review. He contended that the trial court committed reversible error when it permitted the Commonwealth, over objection, to reference his pre-arrest silence in response to police questioning as substantive evidence of his guilt. The prosecutor had discussed the fact that during the investigation of Snodgrass’ murder, the detective on the case asked Molina when he last saw Snodgrass. Molina initially told the detective a year and a half before; then moments later, he stated it had been approximately three months since he last saw Snodgrass. The detective testified that she asked Molina to come down to police headquarters so she could further interview him and he refused.

At closing argument, counsel for the Commonwealth commented on Molina's refusal to cooperate with the detective and asked "Why?". The court found it clear that the prosecutor deliberately exploited Molina’s silence by asking the jury to infer guilt from the fact that he refused to go to the police station to be interviewed. The court determined that the prejudice to Molina could not be considered de minimis and was not harmless. The fact that the jury was persuaded to acquit defendant of the most serious charges while convicting him of others did not rule out the possibility that the jury was not overwhelmed by the credibility of the testifying witnesses. Since the court could not be sure that the jury would have resolved the issue in the same manner absent the improper reference to Molina’s silence, it was not convinced beyond a reasonable doubt that the error did not contribute to the verdict. The court reversed the convictions and vacated the judgment of sentence. The court remanded the case to the trial court for a new trial.

Those accused of crimes are entitled to the protections of the Constitution of the United States. An experienced criminal defense attorney ensures a defendant’s rights are protected. If you have been charged with, or convicted of an offense, you still have constitutionally protected rights which the Law Offices of Marc Neff can protect. For a confidential consultation, please contact our office at 215-563-9800 or via email at

Posted On: February 21, 2012

Coach who Taped His Female Wrestlers Weighing In on a Scale Is Guilty of Attempted Sexual Exploitation

The United States Court of Appeals for the Eighth Circuit decided the case of United States of America, Appellant, v. Scott Johnson, Appellee, an appeal from the United States District Court for the Western District of Missouri. A jury had found Scott Johnson guilty of eight counts of attempted sexual exploitation of children, in violation of 18 U.S.C. § 2251, after he secretly videotaped minor girls weighing themselves in the nude. Johnson was their wrestling coach. However, the United States District Court for the Western District of Missouri granted Johnson’s motion for judgment of acquittal notwithstanding the verdict. The Government appealed.

The district court found that the images were not lascivious and only depicted mere nudity, such that there was insufficient evidence to support the convictions for sexual exploitation. The appellate court determined that the district court erred, because a reasonable jury could have determined that the secretly recorded videos were intended by Johnson to capture a lascivious exhibition of the genitals or pubic area of the young women and were intended to elicit a sexual response in the viewer. The fact that the young women in the videos were not acting in an obviously sexual manner did not necessarily indicate that the videos themselves were not or were not intended to be lascivious. The appellate court reversed the judgment of the district court and remanded for reinstatement of the jury's verdicts and for any necessary further proceedings.

If you have been charged with a crime involving the internet or child pornography, please contact the Law Offices of Marc Neff for a confidential consultation: 215-563-9800 or via email at

Posted On: February 20, 2012

Defendant’s Child Pornography Conviction Overturned Where Other People Had Equal Access to the Computer Used to Download the Pornography

A panel of the United States Court of Appeals for the Fifth Circuit has reversed a child pornography conviction in United States of America v. Keith Moreland. At the trial of this case, the prosecutor introduced 112 digital images of alleged child pornography that a local police officer found on two home computers owned by Keith Moreland and his wife Dianna. Because Keith’s father, George Moreland, was terminally ill and required assisted living, he resided with Keith and Dianna off and on during 2007 and until his death in January 2008.

Keith, Dianna, and Keith’s brother all testified to George’s affinity for pornography. Dianna testified that George would use the computers at night when the rest of the family was in bed. The police officer admitted he could not determine the images' origin or if Keith, Dianna, George, or another person was using the computers when the images were received.

Because of this, the Court of Appeals found that the evidence was insufficient to support a finding beyond a reasonable doubt that Keith knowingly possessed the images. The court held that the evidence did not sufficiently show a rational jury could find beyond a reasonable doubt that Keith knew the images were in the computers or that he had the requisite knowledge and ability to access them and to exercise dominion or control over them. The District Court’s judgment of conviction was reversed.

All persons charged with crimes are entitled to the protections afforded by the United States Constitution. An experienced criminal defense attorney helps to ensure that a defendant’s rights are protected before, during and after a trial. If you have been charged with a criminal offense, you should consult with a criminal defense attorney immediately. For a confidential consultation, contact the Law Offices of Marc Neff at (215) 563-9800 or via email at