Philadelphia criminal appeals lawyer Lloyd Long discusses details surrounding the Pennsylvania’s Superior Court’s decision in the Victor Lopez case. Lopez was convicted for being a felon in possession of a handgun after a jury trial. Police testified that it was a routine job. Lopez testified that police framed him because he would not identify the true possessor of the gun, who he claimed had escaped the scene.

On appeal, Lopez asserted that the prosecutor violated Doyle v. Ohio by repeatedly cross-examining him as to whether he had ever told anyone of his claim that police had framed him prior to his testimony. In closing, the prosecutor argued that Lopez should be disbelieved because he did not make an internal affairs complaint and did not otherwise report police malfeasance to anyone, including law enforcement, jail authorities, or his congressman. Because no objection was made at trial, the claim was reviewed under a plain error standard.

During deliberations, the jury asked at least six questions pertaining to credibility of witnesses. The panel made note that the case obviously hinged on credibility – either the officers were telling the truth about Lopez possessing a gun or Lopez’ assertion of being framed was true.

The panel found three impermissible questions during cross-examination and seven statements during closing about post-arrest silence. Importantly, they were not limited to specific questions as to whether Lopez had informed police about the framing. General questions about not telling anyone about the framing were impermissible.

Lopez’ judgment was reversed. Despite no objection, the questions on cross-examination and the closing argument on this issue were clear and obvious errors under established law. There was a reasonable probability that the error affected the outcome of the proceeding because the jury’s verdict was based on the credibility of witnesses, and the impermissible matters impugned Lopez’ credibility. Finally, the government’s conduct undermined the fairness, integrity, and reputation on the trial.

The government acknowledged at argument that the questions were problematic. But the panel specifically rejected its argument that other impeachment of Lopez — pertaining to prior felony convictions — would have caused the jury to disbelieve him despite the Doyle violations.