Philadelphia Criminal Defense Blog

Zak Goldstein 4/1/22 Zak Goldstein 4/1/22

Attorney Goldstein Wins New Trial in Superior Court Appeal of First Degree Murder Case

The Superior Court has decided the case of Commonwealth v. V.G., reversing that defendant’s conviction for first degree murder and the accompanying mandatory sentence of life without parole. In this case, the evidence introduced at trial showed that the defendant attended a house party. During the party, he was assaulted and robbed by a larger man. He pulled a gun and fired it, shooting and killing the man who had robbed him and shooting and injuring the friend of that man who was rapidly approaching him as if he too might have had a gun. The defendant testified at trial to the above facts and that he had acted in self-defense. Despite his testimony, the trial judge announced that he did not believe the defendant and refused to provide him with the jury instructions for self-defense and voluntary manslaughter. The defendant was convicted and sentenced to life without parole.

V.G. retained Attorney Goldstein and filed an appeal to the Pennsylvania Superior Court. On appeal, Attorney Goldstein argued that the trial court had unfairly deprived V.G. of his entire defense by refusing to instruct the jury on the defenses of self-defense and voluntary manslaughter. The standard for whether a jury instruction relating to a defense should be provided to the jury is solely whether there is some evidence in the record that would support the instruction. In this case, the defendant had specifically testified to his actions and that he took them in self-defense, so there was at least some evidence in the record to support both defenses. The trial judge had erred in simply choosing not to believe the defendant, whereas the question of whether he was telling the truth should have gone to the jury.

The Superior Court agreed. It reversed the defendant’s conviction and remanded the matter for a new trial. V.G., who would have had to serve a life sentence for first degree murder, will now receive a new trial.

Facing criminal charges? We can help.

criminal defense lawyers — 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 3/15/22 Zak Goldstein 3/15/22

PA Superior Court Strikes Down Mandatory Minimum For Driving On a DUI Suspended License

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

The Pennsylvania Superior Court has decided the case of Commonwealth v. Jackson, holding that the sentencing provision in 75 Pa. C.S.A. § 1543(b)(1)(ii) (driving on a DUI suspended license) is unconstitutionally vague. This decision is significant because so many individuals, oftentimes unknowingly, violate this law on multiple occasions and therefore are subjected to the mandatory minimum of at least 90 days of imprisonment. This decision holds that this mandatory 90-day sentence is unconstitutional, and therefore countless individuals will no longer be subjected to it.

Commonwealth v. Jackson

The defendant was arrested under 75 Pa. C.S.A. § 1543(b)(1)(ii), which makes it a crime to drive while a person’s operating privileges is suspended or revoked as a result of a DUI or chemical testing refusing. The defendant pleaded guilty to this offense, but it was his second time violating this statute. Pursuant to 75 Pa. C.S.A. § 1543(b)(1)(ii), if a person has a prior conviction for this offense, then the person must “undergo imprisonment for not less than 90 days.” As such, the trial court sentenced the defendant to 90 days of house arrest and imposed a fine of $1,000.00. The defendant then filed a timely appeal. On appeal, the defendant argued that the sentencing component of the statute is unconstitutionally vague. Specifically, the defendant relied on the Pennsylvania Supreme Court’s recent decision in Commonwealth v. Eid, which held that the sentencing provision in 75 Pa. C.S.A. § 1543(b)(1.1)(i) (which is identical to 75 Pa. C.S.A. § 1543(b)(1)(ii)’s sentencing provision) was unconstitutionally vague because it did not provide a statutory maximum sentence for the offense. The defendant argued that this logic should apply to 75 Pa. C.S.A. § 1543(b)(1)(ii)’s sentencing provision and that it should also be held as unconstitutional.

What is 75 Pa. C.S.A. § 1543(b)(1)(ii)?

75 Pa. C.S.A. § 1543(b)(1)(ii) provides:

(i) A person who drives a motor vehicle on a highway or trafficway of this Commonwealth at a time when the person's operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3802 (relating to driving under influence of alcohol or controlled substance) or the former section 3731, because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3802 or former section 3731 or is suspended under section 1581 (relating to Driver's License Compact) for an offense substantially similar to a violation of section 3802 or former section 3731 shall, upon a first conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $500 and to undergo imprisonment for a period of not less than 60 days nor more than 90 days.
(ii) A second violation of this paragraph shall constitute a summary offense and, upon conviction of this paragraph, a person shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for not less than 90 days.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court agreed with the defendant and vacated the sentence. Notably, the trial court had also agreed with the defendant and in its opinion wrote that he received an illegal sentence because of the Pennsylvania Supreme Court’s decision in Commonwealth v. Eid. The Superior Court held that the sentencing provision that was found to be unconstitutional in Eid was “identical” to the sentencing provision in 75 Pa. C.S.A. § 1543(b)(1)(ii). Therefore, “because 75 Pa. C.S.A. § 1543(b)(1)(ii) does not provide for a maximum term of incarceration, it is unconstitutionally vague and inoperable for the same reasons expressed in Eid.” Pennsylvania law requires that almost all sentences have both minimum and maximum terms. As this statute does not allow for a maximum sentence that is different from the minimum, it was unconstitutional. Accordingly, the Court vacated the defendant’s sentence, and he will receive a new hearing at which no mandatory minimum will apply.

Facing Criminal Charges? We Can Help.

Zak Goldstein 2/25/22 Zak Goldstein 2/25/22

PA Superior Court: Sexually Violent Predator Determination May Not Be Made Based on Hearsay

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

The Pennsylvania Superior Court has decided the case of Commonwealth v. Aumick, holding that the Commonwealth may not use hearsay alone to prove that a defendant should be designated as a sexually violent predator (“SVP”). The Sex Offender Registration and Notification Act (SORNA) often requires defendants convicted of a sexually violent offense to be assessed on specific criteria to determine if they should be designated as an SVP. The court will then hold a hearing in order to determine the defendant’s status. In this case, the Superior Court rejected the proposition that the Commonwealth could rely only on hearsay testimony at an SVP hearing.

COMMONWEALTH V. AUMICK

The defendant pleaded guilty to one count of corruption of minors, resulting in a sentence of 18 months to 5 years in prison. This conviction required an assessment to determine if the defendant should be designated as an SVP. The Sexual Offenders Assessment Board (SOAB) assesses an individual with a criminal conviction. The assessment must consider a number of factors to determine if the individual has a mental abnormality or personality disorder that raises the likelihood of the individual engaging in sexually violent behavior. Such factors include whether the offense involved more than one victim; whether the individual exceeded necessary means to perform the offense; the nature of the sexual contact with the victim(s); the relationship between the defendant and the victim(s); the age of the victim(s); the extent of cruelty displayed by defendant during the offense; the defendant’s prior criminal history; whether the defendant fully completed prior sentence(s); whether the defendant participated in programs for sexual offenders; the defendant’s age; the defendant’s use of illicit drugs; whether the defendant suffers from a mental disability, mental illness, or other mental abnormality; any behavioral characteristics that relate to the defendant’s conduct; and any other factor that could relate to the defendant’s possibility of reoffending.

After the assessment is completed, the individual and district attorney receive of a hearing. The sentencing court must determine whether the Commonwealth can produce clear and convincing evidence that the individual should receive the designation of SVP at this hearing.

After the defendant’s guilty plea, the court ordered an assessment to determine whether the defendant should be designated as an SVP. Dr. Mary Muscari performed the assessment and concluded that defendant met the criteria. The report was sent to the Commonwealth, who forwarded a copy to the defendant and moved for a hearing.

The Commonwealth used Muscari’s testimony as the basis for their case. At the hearing, however, Muscari admitted that she considered only documents submitted by third parties. She testified that she formulated her opinion based on both the offense to which the defendant had pleaded guilty as well as the unproven allegations of the victim which were included in the charging documents. Muscari opined that the defendant had a pedophilic disorder, and he met the predatory criteria required due to the conduct he engaged in with his step-granddaughter. She claimed that the defendant was likely to reoffend even though the defendant had not committed prior sexual crimes.

Defense counsel counsel objected to Muscari’s opinion due to her claim that her assessment was partially based on allegations that to which the defendant did not plead guilty. Muscari also did not interview the defendant or the complainant for her assessment. Despite these objections, the trial court designated the defendant a sexually violent predator. Defense counsel appealed this decision, arguing the designation was based on hearsay related to allegations which were never proven because the defendant’s plea was not to all of the charges.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the trial court’s SVP designation. The Court concluded that Commonwealth v. McClelland set the precedent that hearsay alone is not sufficient evidence for a prima facie case at a preliminary hearing. If hearsay is not sufficient to hold a defendant for court at the preliminary hearing, then it is also not sufficient for establishing that a defendant is a sexually violent predator. As Muscari served as the only witness and did not provide any non-hearsay proof that the defendant was a sexually violent predator to support her conclusion, the Court determined that the Commonwealth failed to meet its burden of presenting clear and convincing evidence. Most importantly, the Court found that the doctor simply could not rely on hearsay evidence relating to unproven allegations. Had the doctor interviewed either the defendant or the complainant and learned firsthand of those claims, the doctor would have been in a position to decide whether or not to consider them. But here, the expert relied entirely on the hearsay contained in charging documents. Accordingly, the doctor’s opinion was not based on competent evidence, and the Court reversed the trial court’s decision.

Facing Criminal Charges? We can help.

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 helped numerous clients obtain new trials and sentencing hearings on appeal. 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 2/15/22 Zak Goldstein 2/15/22

PA Superior Court: Police Generally May Not Search Car Incident to Arrest Without Search Warrant

The Pennsylvania Superior Court has decided the case of Commonwealth v. Lutz, holding that the police generally may not search a car incident to the driver’s arrest without first obtaining a search warrant. This is an important holding because it provides substantial protections for Pennsylvania citizens that are not provided by federal law. Further, the court also suggested that police may not be able to go into a car to retrieve contraband under the plain view doctrine without first obtaining a warrant, as well.

The Facts of Lutz

In Lutz, the defendant was arrested for DUI as well as possession of marijuana and possession of drug paraphernalia. The defendant moved to suppress the evidence which the police had recovered from her vehicle, namely the marijuana as well as a marijuana pipe.

The trial court held a hearing on the motion to suppress. At the hearing, Sergeant Nunemacher of the Lansford Police Department testified that he responded to a report of a suspicious vehicle parked at the foot of a private community on a water authority road. Police regularly patrolled this area because it was known for drug activity and as an area where people dump garbage. When he arrived, he found the defendant’s vehicle parked in a rocky area. He heard loud music coming from the car.

The defendant exited the vehicle and approached the officer. The officer quickly concluded that the defendant was under the influence of alcohol and called for backup. He asked the defendant to participate in field sobriety tests as well as to take a breathalyzer, but she did not really comply. He ultimately arrested her for DUI.

The officer then checked on the defendant’s vehicle. The defendant had left her keys in the ignition, and the car was still running. When the officer looked into the car, he saw a marijuana pipe sitting on the driver’s seat. He went into the car to turn off the car and retrieve the pipe. The defendant told the officers that they might find some marijuana in the car, so the officers then searched the rest of the car and unsurprisingly found marijuana.

The trial court denied the motion to suppress. The court found that police were not required to obtain a search warrant because the pipe was contraband which was in plain view and because they were allowed to search the car incident to the defendant’s arrest. The defendant appealed.

The Pennsylvania Superior Court Appeal

The Superior Court reversed the trial court’s ruling on appeal. The Superior Court found that with respect to the pipe, the officers had not violated the requirement that they obtain a search warrant prior to searching a vehicle because the officers found the pipe pursuant to the plain view exception to the warrant requirement.

Under Commonwealth v. Alexander, police generally must obtain a search warrant prior to searching a vehicle. There are exceptions, however, for exigent circumstances. In this case, there were no exigent circumstances that would allow a frisk of the vehicle, but the plain view exception applied.

The plain view exception allows police to conduct a warrantless search and seizure if four elements are met. First, the police must not have violated the Fourth Amendment in arriving at the location from which the item could be viewed. Second, the item must be in plain view. Third, the incriminating character of the item must be immediately apparently. Fourth, the police must have a lawful right of access to the item itself.

Here, the Court found that all four requirements were met with respect to the pipe. The police were on public property and able to see the pipe without going into the car. The pipe was plainly visible without opening the door or moving anything, and based on the officers’ experience, the pipe was clearly for use with marijuana instead of tobacco.

The fourth requirement, however, was a little bit more complicated. Police did not have a search warrant, so they could not really enter the defendant’s car. The Superior Court, however, found exigent circumstances from the fact that the defendant had been arrested and police needed to go into the car to turn the car off and retrieve the keys because the defendant had left the car running. Once they were in the car for the purpose of turning it off and getting the keys, the police were then allowed to retrieve the pipe without getting a warrant. They had a lawful right of access to the item from the exigent circumstances of needing to turn off the car.

This would have been a more difficult question had the car not been running. The Court’s opinion implies that in that case, the police would likely need to get a warrant prior to retrieving the pipe even if they could tell that it was contraband before they entered the car. This is an important issue which has not totally been resolved by the Pennsylvania courts as officers often claim to have seen contraband in plain view during traffic stops. Here, the Court relied on the exigency of needing to turn the car off to support the warrantless entry into the car, suggesting that if the car had been off, police would have needed to get a warrant prior to retrieving the pipe.

With respect to the rest of the search of the car for the items that were not in plain view, the police action was very clearly unconstitutional. As previously mentioned, in Commonwealth v. Alexander, the Pennsylvania Supreme Court found that police generally need to get a search warrant prior to searching a vehicle. As a general rule, there is a search incident to arrest exception which allows police to search a person who has been arrested for drugs or contraband as well as to inventory their belongings. The Court here held that that exception does not extend to a person’s vehicle once the person has been arrested, removed from the vehicle, and placed in handcuffs. At that point, there is no basis for believing that the person could retrieve a weapon and destroy evidence, so the exception does not apply. Therefore, the trial court should have granted the motion to suppress with respect to the marijuana in the car. The Court reversed the conviction and remanded the matter for a new trial without the illegally seized drugs.

Read the Superior Court’s Opinion