Philadelphia Criminal Defense Blog

Zak Goldstein 4/7/25 Zak Goldstein 4/7/25

PA Superior Court: Aggravated Assault (F1) and Aggravated Assault (F2) Do Not Merge

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Vializ-Rios, again holding that aggravated assault as a felony of the first degree does not merge for sentencing purposes with aggravated assault as a felony of the second degree. The Court held that F2 aggravated assault is not a lesser included offense of aggravated assault as a first degree felony. Therefore, a court may sentence a defendant to consecutive sentences following a conviction for both offenses even where the convictions arise out of the same conduct.

The Facts of Vializ-Rios

In a recent appellate decision, the Pennsylvania Superior Court affirmed the judgment of sentence imposed on the defendant following his convictions stemming from an alleged violent assault against the mother of his one-year-old child. The incident was prosecuted in Lancaster County, Pennsylvania.

During the altercation, which began inside a vehicle parked at a convenience store, the defendant repeatedly struck the complainant in the face with a closed fist and subsequently hit her with a glass bottle. The attack resulted in significant injuries, including substantial facial trauma, loose teeth, and a fracture of her alveolar ridge—a bone critical for supporting teeth. The complainant required stitches, dental realignment, and a splint, forcing her onto an all-liquid diet for six weeks. She continues to require ongoing medical treatment.

Following a jury trial, the defendant was convicted of aggravated assault (causing serious bodily injury) as a felony of the first degree, aggravated assault (causing bodily injury with a deadly weapon) as a felony of the second degree, recklessly endangering another person, endangering the welfare of a child, simple assault, and stalking. He received a sentence of 7½ to 15 years for aggravated assault causing serious bodily injury, with additional concurrent and consecutive sentences for the remaining charges. The defendant appealed to the Pennsylvania Superior Court.

The Issue on Appeal

On appeal, the defendant argued primarily that the two aggravated assault charges should have merged for sentencing purposes because they arose from the same criminal act—striking the complainant with a bottle. Under Pennsylvania law, charges merge for sentencing purposes when two offenses arise from a single criminal act and when all statutory elements of one offense are fully contained within the other offense. However, the Superior Court rejected the argument in this case, citing the sentencing statute (42 Pa.C.S. § 9765), which requires examining the elements of each offense independently. The court held that aggravated assault causing serious bodily injury and aggravated assault with a deadly weapon contain distinct statutory elements. Specifically, aggravated assault causing serious bodily injury involves causing severe harm intentionally, knowingly, or recklessly, without regard to the method used, while aggravated assault with a deadly weapon explicitly requires the use of such a deadly weapon and requires bodily injury rather than serious bodily injury. Due to these critical differences, the two charges do not merge under Pennsylvania law.

Additionally, the defendant challenged the trial court's authority to issue a no-contact order regarding the complainant and their child. Although the trial court initially issued a no contact order, the trial court later vacated the order, recognizing it lacked jurisdiction to impose such conditions on an individual serving a state prison sentence. That authority rests solely with the Pennsylvania Department of Corrections and the Parole Board.

Ultimately, the Superior Court affirmed, finding that the trial court could sentence the defendant to consecutive sentences because aggravated assault (F1) and aggravated assault (F2) are separate offenses which do not merge.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Goldstein Mehta LLC 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 and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and 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.

Zak Goldstein 4/3/25 Zak Goldstein 4/3/25

PA Superior Court Reverses Rule 600 Dismissal in Commonwealth v. Farlow, Holds Rule 1013 Exclusively Governs Speedy Trial in Philadelphia Municipal Court

In Commonwealth v. Farlow, 2025 PA Super 76, the Pennsylvania Superior Court reversed an order dismissing charges on Rule 600 speedy trial grounds, holding instead that Rule 1013—not Rule 600—governs speedy trial calculations in cases tried in the Philadelphia Municipal Court. The Court held that pre-arrest delay is essentially not an issue in a misdemeanor case in Philadelphia because Rule 1013’s speedy trial requirement runs from preliminary arraignment (which typically occurs when the defendant is arrested) rather than when the police file a criminal complaint (which may happen long before the arrest).

Background

The defendant was charged on September 20, 2021, with simple assault and recklessly endangering another person (“REAP”) based on conduct which allegedly occurred on August 22, 2021. The police promptly obtained an arrest warrant, but they did not arrest the defendant until March 21, 2023, which was over eighteen months later. The defendant was also originally charged with a felony aggravated assault charge, so the defendant was entitled to a preliminary hearing in the Philadelphia Municipal Court. The Municipal Court judge dismissed the aggravated assault charge at that hearing, and so the remaining misdemeanor charges were remanded for trial in the Philadelphia Municipal Court.

On the scheduled trial date of May 23, 2023, the defendant argued a motion to dismiss under Pa.R.Crim.P. 600, arguing that Commonwealth had not acted with due diligence during the pre-arrest period in locating the defendant and arresting her. The Commonwealth was ready for trial on that date, but if the time between the filing of the complaint and the arrest counted for speedy trial purposes, then the Commonwealth would have already violated Rule 600. Rule 1013 requires a defendant in a Municipal Court case to be brought to trial within 180 days of preliminary arraignment, but Rule 600, which applies to all Common Pleas cases, requires a defendant to be brought to trial within 365 days of the filing of the criminal complaint. Thus, if Rule 600 also applied, then the Commonwealth violated the defendant’s speedy trial rights.

The Municipal Court judge agreed with the defendant that both rules applied and dismissed the case. The Commonwealth appealed to the Court of Common Pleas, and the Common Pleas judge affirmed. That judge reasoned that Rule 600 governed the case with respect to the lengthy pre-arrest delay and Rule 1013’s silence on that issue. More than a year had passed from the filing of the criminal complaint, so the Common Pleas judge affirmed the dismissal of the charges.

The Commonwealth appealed to the Superior Court, arguing that Rule 1013 should apply to cases remanded for trial in Municipal Court and that, under Rule 1013’s timeline, no violation had occurred because Rule 1013 does not include pre-arrest delay in the calculation. Instead, time begins running under Rule 1013 essentially at arrest.

The Superior Court’s Analysis

The Superior Court agreed with the Commonwealth and clarified that Rule 1013—not Rule 600—governs speedy trial rights in cases ordered to be tried in the Philadelphia Municipal Court even if the case was initially filed as a felony. The Court held that Rule 1013(A)(3) explicitly provides for a 180-day deadline starting from the date of preliminary arraignment or the order transferring the case, whichever is greater.

Because the defendant was preliminarily arraigned on March 22, 2023, and the charges were dismissed before the 180-day period expired, the Superior Court found no Rule 1013 violation and reversed the dismissal.

The Court rejected the defendant’s argument that Rule 600 should apply to pre-arrest delay in such cases under Rule 1000(B). While acknowledging the potential due process concerns created by prolonged pre-arrest delay, the Court emphasized that neither Rule 600 nor Rule 1013 includes language covering that specific issue in this context. Notably, the Court found that while Rule 1013 accounts for pre-arrest delay when a defendant appears by summons, it intentionally begins the trial clock at arraignment in arrest warrant cases, signaling a deliberate drafting choice.

Takeaway

Interpreting the rules in this matter leads to a bizarre result. If the defendant had waived the preliminary hearing and agreed to have the felony charges tried in the Court of Common Pleas, then Rule 600 would have applied, and the case should have been dismissed. But because the defendant was successful at the preliminary hearing in having the felony dismissed and the case remanded, the defendant gave up the speedy trial defense available under Rule 600. That makes no sense as the defendant should not have to waive the preliminary hearing in order to then have a more serious case dismissed. Further, this interpretation of the rules means that the Commonwealth has no obligation to find and arrest a defendant for a less serious misdemeanor case, but the Commonwealth must promptly arrest a defendant for a felony case or the felony could be dismissed. Essentially, it makes it more likely that a more serious case will be dismissed on speedy trial grounds rather than a less serious case. Further, the rules are simply silent on whether Rule 600 applies in the absence of a specific provision in Rule 1013 to the contrary. Hopefully, the defendant will seek reargument or petition the Supreme Court.

This decision serves as a crucial reminder that in Philadelphia, once a felony charge is dismissed and the case is remanded to the Municipal Court for trial on remaining misdemeanor charges, Rule 1013 governs the speedy trial timeline. While Rule 600 begins the clock at the filing of the complaint and covers pre-arrest delay, Rule 1013 begins at the preliminary arraignment—effectively excluding pre-arrest periods from its calculus.

Defense attorneys handling cases where the charges may get remanded must now decide whether it may make sense to actually waive the preliminary hearing in order to retain stronger speedy trial protections rather than contesting the charges at the preliminary hearing and giving up the protections of Rule 600 in a case involving a lengthy pre-arrest delay. This is a difficult decision to make as the defense may not have discovery which shows the reason for the pre-arrest delay at the time of the preliminary hearing. Alternatively, the Court left open the possibility of challenging pre-arrest delays under constitutional due process principles.

Citation: Commonwealth v. Farlow, 2025 PA Super 76 (Mar. 28, 2025).

Facing criminal charges or appealing a criminal case in Pennsylvania?

Goldstein Mehta LLC Criminal Defense Attorneys

Zak Goldstein 4/1/25 Zak Goldstein 4/1/25

PA Superior Court: Shining Flashlight Into Small Opening of Shoebox Violates Plain View Doctrine

Pennsylvania Superior Court Reverses Conviction Based on Warrantless Shoebox Search

Zak Goldstein Criminal Defense Lawyer — Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

In Commonwealth v. Herlth, 2025 PA Super 73, the Pennsylvania Superior Court reversed a drug conviction after concluding that a warrantless search of a shoebox violated the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. The ruling serves as a clear reaffirmation of privacy rights in closed containers within the home—even during police responses to medical emergencies.

The Facts of Herlth

The case arose out of an incident which occurred on August 31, 2020, when Pennsylvania State Police responded to a report of a drug overdose at a residence in Red Lion, Pennsylvania. EMS personnel were already inside administering care to the defendant when a state police trooper entered the house. The trooper was not there to provide medical assistance, but he wanted to ensure the safety of the EMS responders and “see what [the patient] overdosed on to possibly make an investigation further, anything that’s in plain view that we can see.”

While standing in a small living room near the defendant’s feet, the trooper noticed a closed shoebox next to the defendant’s leg. He then shined his flashlight into a manufacturer’s hole in the box and saw what appeared to be “scramble” capsules which were commonly used to package fentanyl and other drugs. Believing that the defendant had overdosed on these capsules, the trooper opened the box and seized a bag containing 117 capsules.

The defendant was arrested and charged with possession with the intent to deliver. He filed a motion to suppress the evidence, arguing that the trooper conducted an illegal warrantless search of his house and the shoebox. The trial court denied the motion to suppress and allowed the introduction of the evidence at trial. The court reasoned that the drugs were in plain view because the trooper was able to find them without actually opening the shoebox even though the trooper could not see them without using his flashlight. The court found the defendant guilty of PWID and sentenced him to seven to fourteen years’ incarceration. He appealed.

The Legal Issue: Was the Search Justified by the Plain View Doctrine?

On appeal, the defendant challenged the warrantless search and seizure, arguing that the use of a flashlight to examine the interior of a closed shoebox exceeded the scope of any permissible exception to the warrant requirement.

The Superior Court agreed. The Court explained the three essential requirements for the plain view doctrine to apply:

The officer must lawfully be in the vantage point from which the object is viewed;
The incriminating nature of the object must be immediately apparent (i.e., there must be probable cause);
The officer must have lawful access to the object.

While the Court acknowledged that the defendant lawfully entered the home under the “community caretaking” doctrine to ensure EMS safety, it held that the Commonwealth failed to satisfy the other two prongs of the test.

Specifically, the shoebox was a closed, opaque container, not an item whose incriminating character was immediately apparent. There was no way for the trooper to observe the contents without manipulating the container by shining a flashlight into a manufacturer’s hole—an investigative act which itself constituted a search.

Reliance on Key Precedent

The Court drew heavily on Commonwealth v. Graham, 721 A.2d 1075 (Pa. 1998), and Commonwealth v. Norris, 446 A.2d 246 (Pa. 1982). In both cases, the Pennsylvania courts held that police may not use the plain view doctrine to justify extending a search into containers or concealed areas unless the object is already visible and the officer has lawful access.

In Graham, for example, the officer shined a flashlight into the defendant’s pocket after a Terry frisk had concluded, ultimately discovering contraband. The Supreme Court found that flashlight use in that context transformed an otherwise valid frisk into an unlawful search. Likewise, in Norris, officers were justified in seizing a knife on a nightstand but were not permitted to search under a mattress for a hidden firearm after the emergency had ended.

Why the Flashlight Made the Search Unlawful

Although courts have upheld flashlight use when illuminating objects that would otherwise be visible during the day, that principle did not apply here. The Superior Court emphasized that the scramble pills inside the shoebox were not in plain view; even in full daylight, they would have remained hidden inside the closed box. The use of a flashlight to peer into the hole was not passive illumination—it was a directed, investigative act taken without a warrant or exigent justification.

Outcome

The Superior Court reversed the denial of suppression, vacated the judgment of sentence, and remanded the case for further proceedings. One judge dissented, so the Commonwealth may file for review by the entire court.

Key Takeaways

The case underscores the robust privacy protections for closed containers inside a residence.
Police officers responding to overdoses or other emergencies must avoid converting caretaking roles into investigative searches unless they obtain a warrant or meet one of the narrow exceptions.
The plain view doctrine does not permit flashlight-aided searches of opaque containers without probable cause and lawful access.

This decision reinforces a critical constitutional limit on police authority and serves as a cautionary tale: even in good-faith responses to public health emergencies, law enforcement must respect established privacy rights.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Zak Goldstein 2/12/25 Zak Goldstein 2/12/25

Attorney Goldstein Wins Reversal of Dismissal of PCRA Petition on Prosecutorial Misconduct Claim

Criminal Defense Lawyer Zak Goldstein — Criminal Defense Attorney Zak Goldstein

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, recently won the Superior Court appeal of the denial of a PCRA petition. In the case of Commonwealth v. S.D., the Superior Court reversed the denial of a PCRA petition and remanded the new case for an evidentiary hearing on whether trial counsel was ineffective in failing to object to improper arguments from the prosecutor during opening statements closing arguments.

S.D. was charged with burglary and related charges for an alleged home invasion burglary. During both opening statements and closing arguments, the prosecutor repeatedly urged the jury to imagine themselves in the victims’ shoes and think about how scary the incident must have been for them. S.D.’s trial attorney failed to object to this argument.

Pennsylvania appellate courts have long held that prosecutors may not make argument designed specifically to inflame the passions of the jury or designed solely to get the jury to convict based on sympathy for the victim. Prosecutors have lots of leeway in terms of being allowed to use oratorical flourish and in making argument, but there are limits. Indeed, courts have repeatedly held that urging jurors to imagine themselves as the victims of a crime is improper.

After S.D.’s appeals were unsuccessful, S.D. retained Attorney Goldstein to file a Post-Conviction Relief Act Petition (PCRA). Attorney Goldstein filed the petition, alleging that trial counsel provided the ineffective assistance of counsel in failing to object to the prosecutor’s improper argument. The trial court denied the petition, but the Superior Court reversed the denial of the petition on appeal. The Superior Court recognized that the case law generally prohibits prosecutors from making arguments similar to those at issue in this case. The Court therefore remanded the case for an evidentiary hearing on whether trial counsel had a strategic basis for failing to object. If the court finds that trial counsel did not have a good reason for failing to object, then S.D. may receive a new trial.

Facing criminal charges or appealing a criminal case in state or federal court in Pennsylvania? We can help.

PCRA Lawyer Zak Goldstein — Philadelphia Criminal Defense 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.