Philadelphia Criminal Defense Blog

Zak Goldstein 8/24/21 Zak Goldstein 8/24/21

PA Superior Court: Consecutive Probation May Not Be Revoked While Defendant Still on Parole

The Pennsylvania Superior Court has decided the case of Commonwealth v. Simmons, holding that a trial court may not anticipatorily revoke a defendant’s probation sentence. This decision is a huge win for defendants. As a practical matter, if a defendant receives a jail sentence, they often receive a probation sentence that runs consecutive to their jail sentence. When they are released from prison, they are technically on parole, but have not yet begun serving their probation sentence. Simmons holds that if a defendant violates his or her parole, they cannot also be punished for violating their probation at the same time because they have not yet begun serving the probation sentence. Consequently, the worst-case scenario for a defendant is to receive the balance of their back time for their violation. This is significant because as a practical matter this means a defendant can usually only receive a county sentence for their violation, instead of a state sentence.

Commonwealth v. Simmons

In 2017, the defendant pleaded guilty to firearms not to be carried without a license and carrying firearms on the public streets of Philadelphia. The defendant was subsequently sentenced to a term of six to 23 months in jail, followed by three years’ probation. At some point, the trial court amended his sentence to have the probation sentence run concurrently to this jail sentence. It is unclear when this occurred, but it occurred more than 30 days after his sentencing hearing.

A few months after his sentencing, the defendant was arrested again and charged with firearms not to be carried without a license and possession of a controlled substance. The arrest occurred while the defendant was on parole, but before the term of the probation of his case had begun. On his new case, the defendant pleaded guilty to firearms not to be accrued without a license and possession of a controlled substance. The defendant was sentenced to six to 23 months’ incarceration, followed by three years’ probation. As a result of these new convictions, the judge on his original case anticipatorily revoked his probation and sentenced him to a term of two and one-half to five years in prison.

The Defendant’s Appeal

The defendant filed a timely appeal. The defendant argued that the trial court erred when it found that he had violated a condition of his probation because it had not yet begun. In other words, the defendant argued that he could not have violated his probation when his probation had not officially started. Additionally, the defendant argued that the trial court illegally modified his sentence, as the trial court did not have jurisdiction to modify his sentence more than 30 days after its imposition.

Initially, the defendant was unsuccessful and the Pennsylvania Superior Court denied his appeal. Undeterred, the defendant filed for an application for re-argument en banc and the Pennsylvania Superior Court agreed to rehear his appeal.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the trial court’s decision. In making its decision, the Superior Court reviewed the relevant sentencing statutes governing the imposition and revocation of an order of probation. It also reviewed prior appellate decisions concerning these issues. In its analysis, the Superior Court determined that a trial court is permitted to enter an order of probation and that it can impose this order consecutively or concurrently. Additionally, a trial court is permitted to terminate a defendant’s supervision at any time, but it can only revoke an order of probation when there is proof that the defendant violated the specified conditions of his probation. Finally, the Superior Court also found that prior precedent permitted trial courts to anticipatorily revoke a defendant’s probationary sentence.

As a preliminary matter, the Superior Court found that the trial court improperly changed the probation tail on the defendant’s sentence to run concurrently to his incarceration sentence from consecutively. Next, after reviewing the statutes and the relevant case, the Superior Court held that the case law that allowed anticipatory revocations of probation was “incorrect” and that they “contravene[d] the plain language of the relevant statutes.” The Superior Court stated that “under the Sentencing Code, a sentence of total confinement and a consecutive order of probation may not be aggregated and viewed as one.” Therefore, a defendant cannot be found to violate the terms of his probation before his probation begins.

So what does this all mean? The easiest way to explain it is to use the defendant’s case. Remember, on his first case, the defendant received a sentence of six to 23 months’ incarceration, followed by three years’ reporting probation. When the defendant picked up his new case, he was on parole and had not begun his probation sentence. Consequently, because of the Superior Court’s decision, the worst punishment he can now receive is the balance of his back time (i.e. the 23 months minus how much time he has served in jail). In the instant case, because the defendant was illegally sentenced (and because he received a sentence that exceeded his original sentence), he will get a new sentencing hearing. Had he been found in violation once the probation started, he would have been facing the maximum on the charge for which he was on probation. For an F3, that would be up to seven years in state prison.

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Criminal Defense Lawyer Demetra Mehta and Zak Goldstein — Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

Zak Goldstein 8/12/21 Zak Goldstein 8/12/21

PA Supreme Court: Commonwealth Must Prove Defendant Committed a Sexual Offense for Felony Corruption of Minors Conviction

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Baker-Myers, holding that to be convicted of the charge of corruption of minors (as a felony of the third degree), the Commonwealth must prove beyond a reasonable doubt that the defendant committed a sexual offense, as defined by Chapter 31. However, it is not necessary for the Commonwealth to actually charge or secure a conviction for the predicate Chapter 31 offense. Further, if a defendant is charged with a sexual offense and is acquitted of the charge, he or she can still be found guilty of felony corruption of minors. However, as in this defendant’s case, if the trial court specifically instructs the jury that it must find the defendant guilty of the predicate offenses that were actually charged, and the jury acquits the defendant of those charges, then a defendant cannot be found guilty of felony corruption of minors.

Commonwealth v. Baker-Myers

The defendant, who was 20 years old at the time, called the 17-year-old complainant nearly a dozen times. The complainant, who had been friends with the defendant for several years, but had not seen him in weeks, missed his calls because she was sleeping. When she texted him back, the defendant stated that he needed to talk with her in person. The two exchanged several messages before the defendant called the victim twice and told her that he was outside of her house. The complainant greeted him at the end of her driveway before agreeing to take a ride with him on his dirt bike.

The defendant then drove them to some baseball fields located a few blocks from the victim’s house. Once there, the defendant instructed the complainant to leave her phone, explaining he wanted their conversation to “be private and no one to listen to it.” The complainant complied and then they continued to drive to another location along some railroad tracks. The complainant and the defendant proceeded to talk for approximately twenty minutes.

At some point during the conversation, the complainant alleged that the defendant “started to get really touchy.” The complainant responded by telling the defendant that she did not feel that way about him and that she was seeing someone else. Undeterred, the defendant began to touch the complainant’s breasts before undoing part of her bathing suit top from behind. While the complainant attempted to retie the part the defendant had undone, he undid the other part, and removed it entirely. He then tossed it into a nearby bush. Eventually, the defendant picked up the complainant and began to undress her. He then digitally penetrated her and then had vaginal intercourse with her. During this time, the complainant repeatedly told the defendant to stop to which he responded that she “probably liked him.” Afterwards, both the defendant and the complainant got dressed and returned to the baseball fields to collect their phones. The defendant then took the complainant home.

The Criminal Charges

The defendant was subsequently arrested and charged with rape, sexual assault, aggravated indecent assault, indecent assault, and felony corruption of minors. It should be noted that the crime of corruption of minors has multiple subsections, one that is graded as a felony, while the other is graded as a misdemeanor. The case then proceeded to a two-day jury trial. At the conclusion of the evidence, the trial court charged the jury on the sexual offenses and the corruption of minors charge. In regards to the jury instructions for the corruption of minors charge, the judge gave a clarifying instruction: “whoever being of the age of 18 and upwards by any course of conduct in violation of Chapter 31, relating to the other sexual offenses being rape, sexual assault, indecent , corrupts or tends to corrupt the morals of any minor of less than 18 years of age…commits a felony of the third degree.”

During the jury’s deliberations, they returned with questions concerning the corruption of minors charge. The court stated “I don’t think it’s the age that is the sticking point here. I think it is the course of conduct in violation…relating to sexual offenses.” Ultimately, the jury returned a verdict of guilty for the corruption of minors charge and not guilty for the sex offenses. The defendant was subsequently sentenced to one to two years’ incarceration and a consecutive three years’ probation tail. Additionally, he had to register as a sex offender for fifteen years. The defendant then filed a timely appeal. On appeal, the defendant argued that the evidence was not sufficient to convict him on the felony corruption of minors charge because he was acquitted of the underlying sexual offenses.

The Superior Court’s Decision

In a divided opinion, the Superior Court remanded the defendant’s case for re-sentencing. The majority concluded that the Commonwealth failed to prove an essential element of the felony corruption of minors charge because he had been acquitted of the actual sexual offenses. However, the Superior Court did find that there was sufficient evidence to convict the defendant of the misdemeanor corruption of minors charge. The Commonwealth then filed a petition for allowance of appeal to the Pennsylvania Supreme Court. On appeal, the Commonwealth asked the Pennsylvania Supreme Court to determine whether the law requires that a defendant be found guilty of a sex offense to sustain a conviction for felony corruption of minors. The Pennsylvania Supreme Court agreed to hear the case.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court affirmed the Superior Court’s decision. In making its decision, the Pennsylvania Supreme Court reviewed the corruption of minors statute. Based on this review, the Court held that “the Superior Court properly determined the language ‘in violation of Chapter 31’ is an essential element of a felony corruption of minors offense. Notably , the Pennsylvania Supreme Court found that the Commonwealth is not required to formally charge or secure a conviction for a predicate Chapter 31 offense to convict a defendant of the felony corruption of minors offense.

However, this was not the end of the court’s analysis. In the defendant’s case, the judge specifically instructed the jury that it was required to find that the defendant committed one of the predicate offenses to convict him of pertaining to the corruption of minors charge. As such, because the jury acquitted the defendant on the sex offenses, the Pennsylvania Supreme Court held that the defendant’s conviction for the felony corruption of minors charge could not stand because of the instructions that were given to the jury. Therefore, the defendant will get a new sentencing hearing and his conviction for the felony corruption of minors charge will be vacated.

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Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

Zak Goldstein 7/31/21 Zak Goldstein 7/31/21

PA Superior Court: Circumstantial Evidence May Authenticate Text Messages

The Pennsylvania Superior Court has decided the case of Commonwealth v. Orr, holding that the Commonwealth properly authenticated text messages that were used against Orr in his murder trial with circumstantial evidence. This decision provides helpful insight on what a court may require before admitting text messages at trial.

Commonwealth v. Orr

In 2015, a police officer received a call for a suspicious vehicle in York County, Pennsylvania. When the officer located the vehicle, he noticed an unresponsive female in the driver’s seat of a running Honda Odyssey Minivan. This woman had sustained multiple gunshot wounds and she did not have a pulse when the officer checked it. The officer determined that she was dead. An autopsy was later performed that showed that the decedent had suffered two gunshot wounds to the head, four gunshot wounds to the torso, two gunshot wounds to the right arm, and two gunshot wounds to her left arm.

The decedent was subsequently identified and her mother was contacted. The mother spoke to the police and informed them that the decedent and the defendant had a child together. She also told the police that she received a letter from the defendant stating that the decedent “didn’t die from jealousy, anger, or aggression, and she didn’t suffer.” In that same letter, the defendant wrote that he was “not guilty of her death.”

The police executed a search warrant of the defendant’s home in Harrisburg, Pennsylvania. While searching his home, they found a backpack with a gun and live ammunition. It was later determined that this gun was the gun used to kill the decedent. Further, the police analyzed the decedent’s cellphone. They found the defendant’s DNA on the phone. Additionally, they reviewed her phone and found text messages that appeared to have been sent from the decedent from the defendant.

In reviewing those messages, the police found several that discussed their ongoing custody dispute over their children. Further, the police found specific texts that implicated him in the decedent’s murder including messages that said things like: “I’m coming through your mom’s door cops called or not your goal for me to go to jail might happen;” “someone in your family are going to [feel] these bullets though and if I was you I’d move your van off of Market Street;” “I don’t give a fuck about no charge. If you don’t care about a bullet in ya’ll asses, so it is what it is. Over my seed, blood will spill.” The police were able to confirm that the defendant owned a cell phone.

After the police completed their investigation, the defendant was subsequently arrested and charged with murder. During trial, the Commonwealth sought to introduce the above text messages into evidence. Defense counsel objected to the text messages on authentication grounds. The trial court overruled the objections and admitted the text messages into evidence.

At the conclusion of the trial, the jury found the defendant guilty of first-degree murder. The trial court imposed the mandatory life sentence. The defendant then filed a timely appeal. On appeal, the only issue that was raised was whether the trial court improperly admitted the text messages into evidence.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the trial court’s decision. Rule 901 of the Pennsylvania Rules of Evidence governs the issue of authentication. The proponent of the evidence must introduce sufficient evidence that the matter is what it purports to be. Testimony of a witness with personal knowledge of the matter is enough to satisfy Rule 901. However, and importantly, the Superior Court also stated that Rule 901 may be satisfied via circumstantial evidence too.

Text messages are documents that are subject to the requirements of Rule 901, too. In its opinion, the Superior Court acknowledged the difficulty in establishing authorship of text messages because more than one individual can access an electronic device with or without permission. As such, appellate courts require that “authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person.” The Superior Court went on to conclude that text messages can be authenticated by using circumstantial evidence.

In this case, the Superior Court acknowledged that there was no direct testimony that showed the defendant sent the texts in question. However, the Superior Court found that there was sufficient evidence to demonstrate that the defendant sent them. It was clear that the defendant owned a cell phone. Further, the fact that there were other messages that referenced their ongoing custody dispute was additional evidence that the defendant authored the texts. As such, the Superior Court found that there was sufficient evidence to authenticate the text messages. Therefore, the Court denied the appeal.

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Zak Goldstein 7/22/21 Zak Goldstein 7/22/21

Can you get your money back if the police take it illegally in Pennsylvania?

Return of Property Petitions in Pennsylvania

Following a recent ruling of the Pennsylvania Commonwealth Court, it is now clear that people who have had their money or other items seized by police officers who did not have probable cause may file a motion to suppress in the Court of Common Pleas and ask that a Common Pleas Judge order the police to return the property. This is called filing a return of property petition. Previously, it was clear that if the police filed criminal charges in conjunction with taking the property, then the defendant could file a motion to suppress and would be entitled to a return of the property if the motion to success was successful in the criminal case. It was unclear, however, what remedy existed for a person who has had his or her cash taken by the police but where the police have not filed charges or an actual forfeiture action.

The Commonwealth Court has now clearly ruled that a person who has had property stolen by the police may file a return of property petition in the Court of Common Pleas and move to suppress the evidence if the police did not have probable cause to take the property or engage in the search that led to the forfeiture. If the judge finds that the police acted illegally, then the Commonwealth must return the money or other property. This rule obviously does not apply to pure contraband like drugs or illegal guns. The Commonwealth Court reached this conclusion in the case of In Re: $300,000 U.S. Currency.

What is a Return of Property Petition?

In Pennsylvania, a Return of Property Petition may be filed when law enforcement officers have seized money or other valuable personal property like cars and watches on the suspicion that the property may be related to criminal activity. If the police do not file criminal charges or a defendant wins a related criminal case, then the return of property petition allows the defendant to ask a judge to order that the property be returned. Return of property litigation is very similar to a forfeiture action. In a forfeiture action, the government moves for a court order directing that it be allowed to keep seized property because the property was obtained through some illegal means. Forfeiture actions often accompany criminal charges. For example, if police officers find a large quantity of money while conducting a search that results in the discovery of drugs, the police will likely keep the money. Prosecutors should then file a forfeiture action if they do not plan to return the money. In many cases, however, the government does not necessarily file the separate forfeiture case. The forfeiture order could come along with a criminal sentence, or the government may simply keep the money.

If there is no criminal conviction, however, or the money is really unrelated to the conviction, then the person who had the money taken by the police can file to have that money returned. Prior to the Commonwealth Court’s recent decision, it was clear that a defendant in a forfeiture action or criminal case could file a motion to suppress and challenge the procedures by which the police recovered the property. If the police acted illegally, then the property should be returned. It was unclear whether a motion to suppress could be filed in a return of property case where the defendant initiated the litigation and the government never filed criminal charges or a forfeiture action.

Rule 588

Rule 588. Motion for Return of Property.
(A)  A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he or she is entitled to lawful possession thereof. Such motion shall be filed in the court of common pleas for the judicial district in which the property was seized.
(B)  The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.
(C)  A motion to suppress evidence under Rule 581 may be joined with a motion under this rule.

In Re: $300,000

An individual was stopped in Union County, Pennsylvania by a Pennsylvania State Police Trooper while he was driving his vehicle. During the search, the Trooper found $300,000 and seized the money. Despite this seizure, the individual was not charged with any crimes. Approximately a month after he was stopped and had his money taken from him, the individual brought a stand-alone return of property action in Union County Court of Common Pleas seeking the return of his property. A few weeks after this filing, the individual then filed a motion to suppress, seeking suppression of the property found in his car and all statements that were made to the police.

The Commonwealth opposed the Individual’s motion to suppress. The government argued that the individual could not bring a stand-alone motion to suppress in a return of property action prior to the Commonwealth filing criminal charges or initiating a forfeiture action. The trial court denied the individual’s motion to suppress arguing that a motion to suppress was “premature.”

The individual then filed a Petition for Permission to Appeal with the Commonwealth Court. In his petition, he asked for the Commonwealth Court to decide whether an individual aggrieved by the seizure of property could file a motion to suppress in conjunction with a motion to return property when the Commonwealth has not filed a forfeiture petition and no criminal charges have been filed. The Commonwealth Court agreed to hear his appeal. It should be noted that approximately six months after the trial court denied his motion to suppress, the Commonwealth filed a forfeiture petition against the individual. Consequently, the Commonwealth argued that the individual’s appeal was now moot because he now had the ability to file a motion to suppress evidence. In response, the individual argued that it was not moot because the Commonwealth could just “sit” on evidence it seizes “until the Commonwealth decides to provide an opportunity to the aggrieved individual to suppress the evidence.”

The Commonwealth Court’s Decision

The Commonwealth Court reversed the trial court’s decision. Regarding the Commonwealth’s argument that the individual’s appeal was moot, the Commonwealth Court found that this issue was capable of repetition, yet likely to evade appellate review. Further, this issue involved an issue important to the public interest and consequently the Commonwealth Court declined to deny the individual’s appeal because of mootness.

Turning to the merits of his appeal, the Commonwealth Court held that an individual can file a motion to suppress regardless of whether or not the Commonwealth has filed criminal charges or a forfeiture action. In making its decision, the Commonwealth Court first emphasized that though forfeiture hearings are “civil in form,” they are also “in their nature criminal.” As such, even though an individual is not entitled to all the rights that criminal defendants receive, they do have some rights. One of those rights is that they are entitled to the exclusionary rule of the Fourteenth Amendment and therefore individuals can file motions to suppress when their property has been unlawfully seized by the government. The United States Supreme Court has also weighed in on this issue and has held that “the Commonwealth may not permanently acquire derivative contraband which it has initially seized unconstitutionally.”

The Commonwealth Court then analyzed the relevant statutes at issue. Specifically, it looked at Rules 581and 588 of the Pennsylvania Rules of Criminal Procedure. In its analysis of these rules it found that motions to suppress were intended to be used by individuals to reclaim their property. Further, the Commonwealth Court also held that a person does not have to be a criminal defendant to initiate the proceedings. Instead, the Commonwealth Court found that it was the intent of the Pennsylvania General Assembly to allow any person who has had their property unlawfully seized be allowed to file a motion to suppress to regain their property. The reason is because if an individual was forced to wait until a criminal complaint or forfeiture petition was filed then the Commonwealth could hold someone’s unconstitutionally seized evidence in perpetuity. This was not acceptable to the Commonwealth Court and therefore it held that, in the future, individuals can file motions to suppress in conjunction with their motions to return property, regardless if a criminal proceeding or a forfeiture action has been initiated against them.

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