Philadelphia Criminal Defense Blog

Zak Goldstein 10/21/21 Zak Goldstein 10/21/21

PA Superior Court: Police Must Obtain “Meaningful Consent” Before Searching a Cell Phone Without a Warrant

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Gallagher, holding that the trial court properly suppressed evidence collected from a defendant’s phone because the Commonwealth had not established that the defendant provided “meaningful consent to the invasive search it performed.” In this case, the defendant had actually consented to a search, but the Superior Court ultimately found that the extraction of the full contents of the phone exceeded the scope of the defendant’s consent. Therefore, the evidence should be suppressed.

Commonwealth v. Gallagher

An officer with the Adams Township Police Department responded to a 911 dispatch from a 16-year-old female caller reporting that she had been the victim of an attempted kidnapping and had escaped and was in hiding. She testified that she also had suffered a head injury. The officer drove to the complainant’s stated location and found her. According to the officer, she was “hysterical, panicky, and scared.” The complainant told the officer that she had been picked up in McKeesport by the defendant and his friend. They stopped at a gas station and at a cemetery where they drank alcohol. Afterwards, they went to meet a friend. She did not remember anything else. She claimed that she woke up on the side of a road with someone on top of her and their hand down the front of her pants. She also claimed that her pants and underwear were pulled down. She then ran away and hid in the woods.

The complainant said the defendant was the one on top of her. She was eventually transported to a local hospital to conduct a sexual assault examination. An unknown amount of time later, the defendant was arrested under suspicion for driving under the influence. He was given his Miranda rights and interviewed for about an hour and a half. During the interrogation, a detective asked the defendant if he could look at his cell phone. The defendant did not object and showed the detective a picture of the two girls he was with the previous weekend. The defendant also signed a consent to the search of stored electronic media. The relevant part of this statement said “I [defendant] having been advised of my rights by [the police] consent to having my computer hardware and all equipment which can collect, analyze, create, display, convert, store, conceal, or transmit electronic, magnetic, optical, or similar computer impulses or data.” The police then seized evidence from the defendant’s phone.

Police eventually arrested the defendant and charged him with attempted rape and other offenses. The defendant filed a pretrial motion seeking suppression of evidence from the “phone dump” conducted by the police during the interview. At the hearing, the trial court granted the defendant’s pretrial suppression motion, suppressing all the evidence that was seized from the defendant’s cellphone. The Commonwealth filed an appeal and argued that this suppression order substantially handicapped its prosecution.

The Superior Court’s Panel Decision

On appeal, the Commonwealth argued that “[c]ommon sense and a view of the surrounding situation would indicate to any reasonable, semi-intelligent person that if a request is being made of him, the converse option is also a possible right available to him.” The defendant argued that the consent form that he signed “did not advise him what his rights where, and [the detective] never told him that he was free to leave and free to withhold consent.” A three-member panel of the Superior Court agreed with the defendant and affirmed the trial court’s decision. The Commonwealth then filed an application for re-argument with a full panel of the Superior Court.

The Pennsylvania Superior Court’s En Banc Decision

The Pennsylvania Superior Court affirmed the trial court’s decision. The Superior Court agreed with the trial court that “the Commonwealth did not establish that the defendant consented to the cell phone dump” and that the form used by detectives “fails to explain [the defendant’s] rights with regard to stored data.” Additionally, the form did not explain what the defendant was consenting to. Further, the detective asking the defendant “if he minded if we looked at his phone” did not make it clear that the police intended to do a complete data dump of his phone. Therefore, the defendant must still stand trial for the aforementioned charges, but the Commonwealth will not be allowed to use the evidence they obtained from his phone at trial.

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Goldstein Mehta LLC Criminal Defense Lawyers

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. 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 10/15/21 Zak Goldstein 10/15/21

PA Superior Court Reins in Prior Bad Acts Evidence in Homicide Case

The Pennsylvania Superior Court has decided the case of Commonwealth v. Green, holding that the trial court improperly granted the Commonwealth’s Prior Bad Acts Motion in a homicide trial. The Superior Court found that the facts of the two cases were not sufficiently similar to justify introducing evidence that the defendant had previously committed another crime and therefore the defendant was unfairly prejudiced at trial. This case is very significant because prosecutors frequently attempt to introduce evidence of prior misconduct by the defendant in serious cases and courts routinely grant these motions. Once a jury learns that the defendant already has a criminal record, it becomes extremely difficult to obtain a fair trial. Therefore, it is very important the Superior Court has found a limit to what type of prior bad acts evidence prosecutors may introduce at trial.

Commonwealth v. Green

A woman was shot and killed in her convenience store in South Philadelphia. A man entered the decedent’s store, aimed a firearm at her, and shot her ten times. The man then fled the store. A short time later, the gunman, later identified as the defendant, was seen on video surveillance entering a black Chevrolet Impala located nearby.

A Philadelphia Police detective spoke to the defendant’s girlfriend. The girlfriend told the police about a night that happened six months prior to the murder. According to the girlfriend, the defendant left her alone in his house and after he left, the girlfriend spoke with the decedent’s grandson and they decided to steal the defendant’s favorite necklace. The girlfriend stole the defendant’s necklace and then gave it to the grandson to pawn. They then split the money and used it to buy drugs.

Four days after the shooting, the defendant was arrested and was charged with first-degree murder, carrying a firearm without a license, carrying a firearm on a public street in Philadelphia, possession of an instrument of crime, and recklessly endangering another person. The Commonwealth filed a motion to introduce prior bad acts. Specifically, the Commonwealth sought to present evidence regarding an incident that took place 14 months prior to the murder. During this incident, the defendant allegedly had a physical altercation over a drug dispute with an individual named “Jay” and in retaliation, shot at “Jay’s” grandmother’s house. However, the defendant was not arrested regarding this incident. According to the Commonwealth, this showed that the defendant had a common scheme or plan of committing retribution against the grandmothers of those with whom he had drug disputes. The trial court granted the Commonwealth’s motion to admit the evidence of the prior shooting.

The defendant elected to proceed by jury trial and represented himself. During his first trial, the trial court declared a mistrial because the jury was unable to return a unanimous verdict. During the defendant’s second trial, he was found guilty of all charges. On the same day, the trial court sentenced the defendant to life in prison. The defendant filed a post-sentence motion which was denied. The defendant filed a timely appeal. On appeal, the defendant raised several issues, but for purposes of this blog, only the issue of whether the trial court improperly granted the Commonwealth’s prior bad acts motion will be addressed.

What is a Prior Bad Acts Motion?

Pennsylvania Rule of Evidence 404(b) is the relevant rule that governs prior bad acts motions. Rule 404(b) states:

1) Prohibited Uses. Evidence of a crime, wrong, other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.

Evidence of prior crimes is not admissible for the sole purpose of demonstrating a criminal defendant’s propensity to commit crimes. However, this type of evidence may be admissible in certain circumstances where it is relevant for some other legitimate purpose and not utilized solely to blacken a defendant’s character. Specifically, other crimes evidence is admissible if offered for a non-propensity purpose, such as proof of an actor’s knowledge, plan, motive, identity, or absence of mistake or accident. As such, when this evidence is offered for a legitimate purpose, evidence of prior crimes will be admissible if its probative value outweighs its potential for unfair prejudice.

When ruling upon the admissibility of evidence under the common plan exception, the trial court must examine the details and surrounding circumstances of each criminal incident to assure that the evidence reveals criminal conduct which is distinctive. In making its decision, trial courts are supposed to consider the habits or patterns of actions undertaken by the defendant. Additionally, trial courts must also consider the time, place, and types of victims. Further, the common plan evidence must not be too remote in time to be probative to the instant matter.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the trial court and granted the defendant a new trial. The Superior Court found that the two incidents were just too different, and therefore the trial court committed reversible error by granting the Commonwealth’s motion. Specifically, the Superior Court found that two different guns were used in the shootings; the defendant was not arrested in the prior bad acts motion shooting; the two shootings were 14 months apart; and in the prior bad acts shooting, only the door was shot. Because these two shootings were too distinctive from one another, the evidence of the prior shooting should not have been admitted at the trial. Therefore, the Court vacated the defendant’s judgment of sentence, and the defendant will receive a new trial.

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Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

Zak Goldstein 10/12/21 Zak Goldstein 10/12/21

PA Superior Court: Not Every Fatal Automobile Accident Is Criminal

The Pennsylvania Superior Court has decided the case of Commonwealth v. Fretts, holding that a defendant should not be charged with homicide by vehicle solely because the defendant committed traffic offenses prior to a fatal accident. Instead, the traffic offenses must have actually caused the accident, and the defendant must have acted recklessly. In other words, fatal accidents, no matter how tragic, are not always a crime.

Commonwealth v. Fretts

The defendant was driving a garbage truck in Philadelphia and struck a bicyclist. The defendant was making a right turn and the bicyclist was traveling straight when the accident occurred. There was no evidence that the defendant was speeding at the time of the accident. The intersection where the accident occurred is regulated by a traffic light and both the defendant and the bicyclist were proceeding into the intersection when the light was green. After the accident, the defendant remained at the scene and he was not issued any traffic citations. Unfortunately, the bicyclist died from his injuries. The defendant was then subsequently charged with homicide by vehicle, involuntary manslaughter, and reckless endangerment.

At the preliminary hearing, the Commonwealth presented evidence to establish the above facts. Additionally, the Commonwealth played video of the incident. One of the videos showed that the bicyclist was in the defendant’s blind spot. The other video was video from the garbage truck. This video did not show the that defendant was distracted while driving the garbage truck, however it does show that the defendant failed to use a turn signal. Also, a photograph was presented that showed that the intersection had a bicycle lane and that there were signs that read “BEGIN RIGHT TURN LANE” and “YIELD TO BIKES.” For whatever reason, the Commonwealth did not formally submit the videos into evidence. At the conclusion of the preliminary hearing, the municipal court judge ruled that the Commonwealth had presented enough evidence to establish a prima facie case for all charges.

The defendant then filed a pretrial Motion to Quash, asserting that the Commonwealth failed to make out a prima facie case against him and seeking to have the Court of Common Pleas dismiss all of the charges against him. The trial court granted the motion to quash and dismissed all of the charges against the defendant. The Commonwealth then filed a notice of appeal. The Superior Court granted the Commonwealth’s appeal and remanded the matter back to the trial court to consider the video evidence.

The court held a new hearing, and at this hearing, the trial court again dismissed the charge of homicide by vehicle because the Commonwealth’s evidence was insufficient to show that the defendant acted recklessly. However, the trial court did not dismiss the charges of involuntary manslaughter or recklessly endangering another person. The Commonwealth then appealed to the Superior Court again. On appeal, the Commonwealth argued that the trial court erred when it held that the evidence was insufficient to establish a prima facie case because the evidence showed that the defendant failed to yield the right-of-way to the bicyclist, interfered with her straight procession across the intersection, and failed to signal his turn.

What is Homicide by Vehicle?

75 Pa.C.S.A. § 3732 governs the crime of Homicide by Vehicle. The statute provides:

Any person who recklessly or with gross negligence causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic except section 3802 (relating to driving under influence of alcohol or controlled substance) is guilty of homicide by vehicle, a felony of the third degree, when the violation is the cause of death.

This offense has three elements: 1) that the defendant violated a statute or ordinance relating to operating or use of a vehicle or regulation of traffic other than the driving under the influence statute; 2) that the violation caused the death of another person; and 3) that the defendant’s conduct was reckless or grossly negligent. The state of mind of gross negligence under the homicide by vehicle statute is the same as recklessness. A defendant acts recklessly when he had both the actual knowledge of a substantial and unjustifiable risk and disregarded that risk despite that knowledge.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the trial court’s decision because the evidence was insufficient to establish that the defendant acted recklessly. According to the Superior Court, there was no evidence that the defendant knew that there was a bicyclist beside the truck when he made the right turn, no evidence that he failed to look before he made the turn, and no evidence that distracted driving caused the accident.

Additionally, the Superior Court was unpersuaded by the Commonwealth’s argument that because the defendant violated three sections of the Vehicle Code (failure to yield to a bicyclist, interference with the bicyclist’s straight procession through the intersection, and failure to use a turn signal), that these violations were sufficient to show that the defendant was acting recklessly. The Superior Court held that none of these violations were probative to show that there was a conscious knowledge of a substantial risk or conscious decision to act notwithstanding the risk. Therefore, the defendant will not be forced to stand trial against the charge of homicide by vehicle.

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Zak Goldstein 9/27/21 Zak Goldstein 9/27/21

3rd Circuit Court of Appeals: Gun Enhancement for Drug Trafficking Offenses Could Apply at Sentencing Even if Gun Nowhere Near Drugs

The Third Circuit Court of Appeals has decided the case of United States v. Denmark, holding that the two-level enhancement for possession of a dangerous weapon during a drug trafficking offense applied even though the defendant conducted the drug deal over FaceTime and did not possess guns when he delivered the drugs. This case provides almost no rational limit on when the enhancement can apply and allows a court to consider applying it even when the gun has almost nothing to do with the drugs.

U.S. v. Denmark

Pennsylvania police intercepted a suspicious package that had been shipped from California to York, Pennsylvania. The package contained five pounds of methamphetamine. Police later determined that the defendant shipped the package. A few months later, law enforcement recorded a FaceTime call with the defendant. During the call, the defendant confirmed his involvement with the shipment. The caller ordered an additional three pounds of meth from the defendant who was to ship the drugs to York, Pennsylvania. The defendant then went to the post-office to deliver the drugs. While he was making his delivery, he was not in possession of any firearms. When the package arrived, the caller confirmed its delivery via phone. The meth was in a heat-sealed bag, which was wrapped in several layers of shrink wrap.

Approximately a month later, police carried out a search warrant for the defendant’s residence. The police confirmed that the defendant had made the aforementioned call in that location, as the residence matched his background during the call. Police did not recovery any drugs, but they did find stashes of firearms and drug paraphernalia in various parts of the house. Specifically, the police found a semi-automatic assault rifle, a shotgun, two handguns, a heat-sealed plastic bag, shrink wrap, and a bullet-proof vest. The police also found several loaded and unloaded magazines for the handguns and the assault rifle and over 900 rounds of ammunition.

The defendant was subsequently arrested, and a grand jury indicted him on two counts of distribution and possession with intent to distribute at least 500 grams of meth. The defendant agreed to plead guilty to one of the counts in exchange for dismissal of the other count and a three-level reduction for acceptance of responsibility. At sentencing, the Probation Department calculated the defendant’s offense level at 35, which gave the defendant a Guidelines imprisonment range of 168 to 210 months and a mandatory minimum of 10 years. The calculation included a two-level enhancement for possession of a dangerous weapon.

During his sentencing, the defendant objected to the weapons enhancement, arguing that the firearms could not have been connected with his conviction because the meth had never been at his residence. The District Court rejected this argument and applied the two-level enhancement which resulted in the defendant’s guidelines being 168 to 210 months. The Court varied downward, based in part of his previous charitable service and family responsibilities. The Court sentenced the defendant to 135 months’ imprisonment. The defendant then filed a timely appeal. On appeal, the defendant argued that for the weapons enhancement to apply, the guns had to be “actually present at the crime.” Specifically, the defendant argued that the guns had to be physically near him while he transported the meth to the post office.

How is U.S.S.G § 2D.1(b)(1) Applied?

Section 2D.1(b)(1) provides that, in connection for unlawful manufacturing, importing, exporting, or trafficking of drugs “if a dangerous weapon (including a firearm) was possessed,” then a defendant’s offense level is increased by 2 levels. The sentencing commission created the enhancement because there could be an increased danger of violence when drug traffickers possess weapons. The enhancement is to be applied if there was a weapon present, unless it is clearly improbable that the weapon was connected with the offense.

In order for this enhancement to be applied, the Government must first prove by a preponderance of the evidence that a defendant possessed a dangerous weapon. The burden then shifts to the defendant “to demonstrate that the connection between the weapon and the drug offense was clearly improbable” or, in other words, that there was a lack of connection between the firearm and the drug offense. As a practical matter, the enhancement is usually applied if a firearm was present.

The Third Circuit’s Decision

The Third Circuit Court of Appeals denied the defendant’s appeal, though it stated that this case “was so tenuous as to place it on the outer edge of the sentencing enhancement.” The Third Circuit held that a firearm does not have to be physically close to drugs or drug paraphernalia for the sentencing enhancement to apply. Instead, the Government only needs to show that there is “a connection” between the guns and the drug trafficking offense.

In the instant case, law enforcement observed the defendant make a drug deal over FaceTime from his home. According to the Third Circuit, because the defendant agreed to sell meth via FaceTime in the same home where the guns were found, the guns were connected to his drug offense. The burden then shifted to the defendant to show that the connection between the drugs and the guns were “clearly improbable.” In making its decision as to whether it was “clearly improbable,” courts consider four factors: 1) the type of gun involved, 2) whether the gun was loaded, 3) whether the gun was stored near the drugs or drug paraphernalia, and 4) whether it was accessible.

The Third Circuit found that the defendant’s guns suggested they were connected to his drug activities. Additionally, the guns were loaded and they were accessible to the defendant. As such, the Third Circuit found that the connection between the guns and the defendant’s drug offense was not “clearly improbable” and therefore his appeal is denied and he will be forced to serve his sentence.

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