Suppression of Evidence; First Amendment

Commonwealth v. Knox, 2016 WL 5379299 (Pa. Super.)(unreported), 3 WAP 2017


Is the question of whether the artistic creation of Petitioner constitutes protected free speech or a true threat punishable by criminal sanction . . . of such substantial importance as to require prompt and definitive resolution by the Supreme Court of Pennsylvania, even if the High Court must decide this question sua sponte?


Jamal Knox was charged with multiple narcotics and firearm offenses after police found heroin, a large sum of cash, and a loaded firearm in Knox’s vehicle during a traffic stop.  While these charges were pending, Beasley and Knox recorded a rap video entitled “Fuck the Police,” which included violent language and referenced the two arresting officers by name and was released on YouTube. A police officer came across the video on YouTube and, after review, Knox and Beasley were charged with intimidation of witnesses and terroristic threats.

At trial, the “Fuck the Police” video was entered into evidence to support the intimidation and terroristic threats charges. Knox waived his right to a jury trial, and the trial court found him guilty of possession with intent to distribute controlled substances, fleeing and eluding, false statements, possession of controlled substances, intimidation of witnesses, terroristic threats, and criminal conspiracy.

Knox’s argued that the trial court erred in admitting the video into evidence when the conduct in the video was protected by the First Amendment. However, the Superior Court, having rejected Knox’s appeal on other issues, considered the First Amendment claim waived because Knox failed to raise that objection at trial when the video was entered into evidence.

For more information, contact Kevin McKeon or Dennis Whitaker.