Philadelphia Criminal Defense Blog

Zak Goldstein 10/25/22 Zak Goldstein 10/25/22

PA Superior Court: Contraband is Not a Strict Liability Offense

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court has decided the case of Commonwealth v. Arnold, holding that the crime of contraband is not a strict liability offense. Strict liability offenses are those which do not require a defendant to act with any mens rea or guilty conscience. They are disfavored in criminal law, and although the contraband statute does not actually identify a specific mens rea, the Superior Court found that the default mens rea of recklessness applies to this charge.

The Facts of Arnold

The defendant was arrested and detained in Butler County for a probation violation. He was transported to the Butler County Prison and placed in a holding cell. A corrections officer searched him during processing and found a pill for which the defendant did not have a prescription. The guard confiscated the pill, and the Commonwealth charged the defendant with contraband. The defendant proceeded to a trial, and he testified that he did not realize the pill was in his sock or shoe because his leg had been amputated, he wore a prosthetic leg between the knee and shoe, and he could not feel anything in the shoe as he did not have an actual foot. In addition to the pill in his sock, he had been found with another controlled substance in his cell. Later, the guards searched his cell and found three pieces of film that contained suboxone in the defendant’s wheelchair. He denied knowing about it.

The jury found him guilty of contraband and possession, and he received a 2-4 year incarceration sentence. Contraband provides for a two year mandatory minimum, so the court was required to impose the mandatory minimum sentence.

The Pennsylvania Superior Court Appeal

The defendant appealed, arguing that the trial court erred in failing to instruct the jury that it must find he acted with a specific mens rea in order to find him guilty of contraband and that making contraband a strict liability offense would violate due process. The Superior Court agreed.

The contraband offense is defined as:

A person commits a felony of the second degree if he sells, gives, transmits or furnishes to any convict in a prison, or inmate in a mental hospital, or gives away in or brings into any prison, mental hospital, or any building appurtenant thereto, or on the land granted to or owned or leased by the Commonwealth or county for the use and benefit of the prisoners or inmates, or puts in any place where it may be secured by a convict of a prison, inmate of a mental hospital, or employee thereof, any controlled substance included in Schedules I through V of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, (except the ordinary hospital supply of the prison or mental hospital) without a written permit signed by the physician of such institution, specifying the quantity and quality of the substance which may be furnished to any convict, inmate, or employee in the prison or mental hospital, the name of the prisoner, inmate, or employee for whom, and the time when the same may be furnished, which permit shall be delivered to and kept by the warden or superintendent of the prison or mental hospital.

This statute does not include a mens rea – in other words, it does not explicitly state that a defendant must act knowingly, intentionally, recklessly, or negligently. Instead, the statute appears to provide strict liability for bringing drugs into a prison. The Superior Court, however, recognized that where the legislature does not specifically state that a serious offense should be a strict liability offense, the crimes code requires a court to read in a minimum mens rea of recklessness. Here, the trial court had not done so. It did not require the jury to find that the defendant at least acted recklessly with respect to bringing the drugs into the prison. Therefore, the Court reversed the conviction and ordered a new trial.

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 won criminal appeals in state and federal court. 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 10/10/22 Zak Goldstein 10/10/22

PA Supreme Court: Trial Court May Dismiss Prosecution for Incompetent Defendant Where Defendant Unlikely to Regain Competency

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Humphrey, holding that Section 7403(e) of the MHPA authorizes a trial court to dismiss the charges of an individual deemed incompetent in any instance that the court finds it would be unjust to resume the prosecution due to the passage of time and its effect on criminal proceedings. Notably, the Supreme Court overruled prior precedent that an individual must regain competency before a trial court may dismiss charges due to the unreasonable nature of this condition and the plain language of the statutory text.

Commonwealth v. Humphrey

While serving a state sentence, the defendant allegedly threw a bag of urine on a corrections officer. A few months later, the defendant allegedly spat on a corrections officer. The Commonwealth charged the defendant with two counts of aggravated harassment by prisoner. Preliminary hearings occurred, and the charges were bound over for trial.

Defense counsel requested a psychiatric evaluation and competency examination of the defendant, and the trial court entered an order for these evaluations. Dr. Scott Scotilla evaluated the defendant and prepared a report. In the report, the defendant displayed paranoid and delusional behavior and frequently spoke about irrelevant topics, such as conspiracy theories, and did not answer Dr. Scotilla’s questions. Dr. Scotilla reviewed Department of Corrections Mental Health Contact Notes, which showed that the defendant had engaged in similar behavior previously. The defendant’s most recent diagnosis indicated he had antisocial personality disorder and mild intellectual disability. Dr. Scotilla concluded that the defendant should be evaluated at another psychiatric center which could more effectively evaluate the defendant and provide restoration of competency services if necessary, though Dr. Scotilla did not mention in his report if the defendant’s competency could be restored or if treatment options within the Department of Corrections could address his competency issues.

The defendant’s attorney filed a petition in the trial court claiming that the defendant could not understand the nature of the proceedings against him and that his mental illness prevented him from being criminally responsible for his offenses. During the hearing on this matter, the Commonwealth agreed that the defendant was not competent to proceed to trial at the time, and the trial court entered an order for the defendant to be admitted into involuntary treatment before the case would be reevaluated. The Department of Human Services ordered the defendant to be transferred to a hospital, but the hospital informed the Commonwealth that the defendant could not be admitted because he was a state inmate serving a sentence.

The defendant eventually filed a motion to dismiss his charges because the Commonwealth was unable to find him necessary competency restoration services, emphasizing the fact that two years had already passed since his offenses occurred and that he would likely not regain competency. The Commonwealth responded, arguing that the defendant did not present sufficient evidence that he would not regain competency to stand trial and requested that the defendant be reexamined for competency. The Commonwealth provided an assessment by Dr. Cynthia Wright of the DOC, where Dr. Wright opined that the defendant’s aggressive behavior was not due to mental illness, but instead due to a desire to receive special privileges. She opined that his diagnoses were antisocial personality disorder, borderline intellectual functioning, and adjustment disorder with depressed mood. Notably, the defendant did not cooperate with Dr. Wright’s evaluation, so she based her report on the defendant’s progress notes, treatment plans, medication summaries, diagnosis summaries, and physicians’ notes.

The court held a hearing on the defendant’s motion to dismiss. All three witnesses agreed that the DOC does not provide competency restoration services to inmates serving state sentences, but the DOC can provide some mental health treatment. The trial court granted the defendant’s motion to dismiss the criminal charges, referencing the Superior Court’s decision in Commonwealth v. McGargle and Section 7403(e), specifically the sentence that explains that a dismissal may occur if it would be unjust for the prosecution to resume based on the passage of time. The trial court noted that the defendant would only become eligible for competency restoration services in the next 2.5 to 13.5 years due to his current sentence and that even if he were paroled after 2.5 years, it is unlikely he would be able to recall the events of his offenses due to the passage of time and the severity of his incompetence.

The Commonwealth filed an appeal, raising the issues of whether the trial court’s dismissal of the defendant’s charges violated Section 7403, whether the evidence was insufficient that the defendant would be prejudiced by resuming criminal proceedings, and whether the trial court erred in dismissing the charges instead of ordering another competency evaluation. The Superior Court agreed that the trial court erroneously interpreted Section 7403(e), stating that relevant case law demonstrated that Section 7403(e) does not authorize dismissal of charges when a defendant would likely not regain competency. The Superior Court did not address the other two issues raised.

The Pennsylvania Supreme Court granted the defendant’s petition for allowance of appeal to address whether the Superior Court erred in reversing the dismissal of charges, where the defendant claimed that Section 7403(e) does authorize dismissal of charges when the resumption of prosecution would be unjust, evidence did establish that the defendant’s incompetence and the passage of time rendered the resumption of prosecution unjust, and competency evaluation was unnecessary since the trial court had concluded that sufficient time had passed for the prosecution to be rendered unjust.

The Pennsylvania Supreme Court’s Decision

The Supreme Court reviewed the MHPA, beginning with Section 7402(a), which states that when an individual who is charged with a crime is unable to understand the nature of the proceedings against him, he will be deemed incompetent to be tried, convicted, or sentenced for as long as the incapacity exists. Additionally, according to Section 7403(f), the stay of the prosecution may not last longer than 10 years in this case. The Supreme Court concluded that both the defendant’s and the Commonwealth’s interpretations of Section 7403(e) were reasonable. However, the Supreme Court determined that the consequences of the Commonwealth’s interpretation were not reasonable.

Under the Commonwealth’s interpretation, the trial court would not possess authority to dismiss criminal charges against an incompetent defendant under any circumstances. Section 7403(e) also does not state at any point that dismissal of charges is based on the defendant’s resumption of competency, which was part of the Commonwealth’s interpretation.

The Supreme Court also acknowledged that if ambiguity exists in a statute, the language should be interpreted in a way that is favorable to the defendant. The Supreme Court disagreed with the initial decision of the Superior Court, which presumed that the Legislature intended for the consequences of the statute to be unreasonable.

The Supreme Court reviewed relevant cases Hazur and McGargle, neither of which properly addressed whether a trial court may dismiss charges of an individual deemed incompetent for the foreseeable future. The Supreme Court determined that Section 7403(e) does grant trial courts the authority to dismiss criminal charges in any instance where it would be unjust to resume prosecution, whether or not the defendant has regained competency. The Supreme Court remanded the remaining issues to an intermediate appellate court. Therefore, the Superior Court vacated judgment and remanded for further proceedings.

Facing criminal charges? We can help.

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 10/6/22 Zak Goldstein 10/6/22

PA Superior Court Reverses Itself and Finds ARD Counts as Prior Conviction in DUI Cases

An en banc Pennsylvania Superior Court has decided the case of Commonwealth v. Moroz, holding that proof of a prior acceptance of ARD counts as a prior offense for sentencing purposes in DUI cases. Notably, this decision overrules the recent panel decision in Commonwealth v. Chichkin which held that prior acceptance of ARD did not count for recidivist purposes.

Commonwealth v. Moroz - Does ARD Count As a Prior Offense in a DUI Case?

Police arrested the defendant for two DUIs on two separate dates. The defendant then entered the Accelerated Rehabilitative Disposition (ARD) program for his first DUI. The court deferred the defendant’s sentencing on other charges from his second arrest. Before sentencing could occur, the Pennsylvania Superior Court issued its opinion on Chichkin, holding that a DUI offense where ARD was accepted could not be used to impose an increased sentence for subsequent DUI offenses.

During trial, the defendant objected to being sentenced as a recidivist based on his prior ARD offense, citing Chichkin. The Commonwealth argued that if it could prove the first DUI offense beyond a reasonable doubt in an evidentiary hearing at sentencing, then it could establish the second DUI was a second offense even though the defendant had received ARD. The Commonwealth then requested an evidentiary hearing to address whether it could prove the first DUI beyond a reasonable doubt. This request was denied. The trial court held the defendant’s sentencing hearing , and the trial court relied on Chichkin in sentencing the defendant as a first-time offender.

The Commonwealth filed a timely appeal, raising the issues of whether the defendant’s prior acceptance of ARD for his first DUI qualified as a prior offense and whether Chichkin should be overruled.

The Pennsylvania Superior Court’s Decision

The Superior Court reviewed relevant case law to make its decision, as well as the DUI gradation statute, Section 3806. Section 3806 specifically mentions that acceptance of ARD constitutes a prior offense. Additionally, other cases such as Commonwealth v. Whalen and Commonwealth v. Scheinert demonstrate that a defendant must voluntarily agree to ARD, indicate he understands the proceedings, and agree to comply with any conditions imposed by the court. The defendant is also presumed to be aware of Section 3806 when accepting ARD. The Superior Court acknowledged that acceptance of ARD does not contain the same procedural safeguards of a conviction following a trial, but it deemed the safeguards of ARD sufficient due to the “intensive process” of the ARD program. Additionally, Whalen states that ARD can be equated with a conviction only under certain circumstances, such as sentencing on subsequent convictions.

Therefore, the Superior Court overruled Chichkin, vacating the defendant’s judgement of sentence, and remanding for further proceedings. The defendant will now face a significantly increased mandatory minimum when he is sentenced as a second-time offender barring further appeals. The Pennsylvania Supreme Court has accepted review of this issue, so this will not be the final word on whether ARD counts as a prior offense in DUI cases.

Facing criminal charges? We can help.

Criminal Defense Lawyers in Philadelphia — 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 10/3/22 Zak Goldstein 10/3/22

PA Superior Court: Defendant May Raise Ineffective Assistance of Counsel Claims on Direct Appeal Where Claims Are Obvious From Record

The Pennsylvania Supreme Court has decided the case of Commonwealth v. McMahon, holding that inadmissible opinion testimony from police about crimes the defendant may have committed but for which he was not charged require a new trial and that the defendant should have been able to raise the claim that his lawyer should have objected to this testimony on direct appeal because the ineffective assistance of counsel was obvious from the record.

Commonwealth v. Bieber

A Pennsylvania jury initially found the defendant guilty of one count of carrying firearms without a license and four counts of harassment. The jury found the defendant not guilty of 16 other counts. The defendant had originally been charged with aggravated assault and other more serious offenses. The court sentenced the defendant to a short county jail sentence, and the defendant appealed. The defendant won his first appeal after successfully arguing that the trial court had conducted a defective waiver-of-counsel colloquy. The appellate courts remanded the case for a new trial.

At the second trial, the Commonwealth proceeded only on the VUFA § 6106 charge because the defendant had been acquitted of the other offenses. Thus, even though he won his first appeal, double jeopardy had attached to the offenses of which he was acquitted. It did not attach, however, to the offense of which he was originally convicted.

VUFA § 6106 makes it illegal to carry a concealed firearm or a firearm in a car without a license to carry. There are, however, numerous exceptions. The exception at issue in this case was the Sportsman’s Permit Exception, which allows for individuals who possess a hunting license to carry a firearm in a vehicle when they are genuinely on their way to or from hunting.

The Facts at Trial

The Commonwealth established that the defendant was driving a car with his then-girlfriend when police conducted a vehicle stop. Police observed a handgun in plain view on the driver’s side of the car, in addition to a holster, a magazine containing eight rounds of ammunition, and one loose round. The handgun was unloaded. The defendant’s girlfriend told police that the gun was not loaded, but at trial, she testified that she had lied. She then testified that during the traffic stop, she heard clicks and the sound of something hitting the floor, and she further explained that the defendant had told her not to tell police that the gun was loaded.

Sergeant Craig Wharton testified that the defendant had previously possessed a license to carry a concealed firearm, but the license had been revoked in 2014. He also testified that at the time of the stop, the defendant possessed a Pennsylvania’s Sportsman’s Firearm Permit, but he did not believe Section 6106(b)(9) applied because the defendant had not been engaged in any hunting or other relevant activities at the time of the traffic stop.

Sheriff Frank Levindoski also testified, explaining that individuals without a carry-concealed permit cannot legally transport a loaded firearm in their car. He then testified to his interpretation of the proper way to transport a loaded firearm. His opinion that an individual may not carry a loaded firearm in a car without a license to carry was based on his interpretation of a different statute, § 6106.1, which the defendant had not been charged with violating. Based on the Commonwealth’s allegations, the defendant could have been charged with violating this statute, but he had not been. The defendant objected to this testimony.

The defendant then testified in response. He provided evidence of his fishing license, hunting license, and sportsman’s firearm license. He admitted he owned the firearm recovered by the police and testified that he had planned to go fishing after dropping his girlfriend off at her home. He also testified that he had had fishing poles and a tackle box in his vehicle, but the police had not searched the trunk, so they did not see those items.

During closing arguments, the Commonwealth asked the jury to rely on Sheriff Levindoski’s testimony that the defendant could not have a loaded firearm in his vehicle without a carry-concealed license unless he was an officer of the law. The jury found the defendant guilty of violating Section 6106. The defendant filed a post-sentence motion seeking unitary review on direct appeal of both his appellate claims and his ineffective assistance of counsel claims (IAC). The trial court held a hearing on the post-sentence motion, but it refused to address the IAC claim that his lawyer should have objected to the officer’s opinion testimony. It denied the motions.

The defendant again filed a timely notice of appeal.

The Pennsylvania Superior Court’s Decision

On appeal, the defendant argued that the Commonwealth elicited inadmissible opinion testimony from Sergeant Wharton and Sheriff Levindoski. He also argued that that his trial counsel was ineffective in failing to object to such testimony. The defendant also argued the trial court erred in declining to grant a new trial due to the error in admitting the improper opinion testimony. The defendant asserted the trial court erred by not permitting the defendant to raise his ineffective assistance of counsel claims in the post-sentence motion so that they would be preserved for the direct appeal.

The Superior Court began its review by addressing Section 6106 and exception Section 6106(b)(9), also known as the Sportsman’s Permit Exception. Notably, the Sportsman’s Permit Exception applies to loaded and unloaded firearms. However, a separate statute, Section 6106.1, does prohibit an individual from carrying a loaded firearm in a vehicle.

The Superior Court further addressed the defendant’s claim that the trial court erred in denying his request to litigate his IAC claims on direct appeal. The Superior Court reviewed relevant case law, including the Holmes exceptions. Typically, IAC claims may only be raised in PCRA proceedings, and PCRA proceedings take place after the direct appeal. The direct appeal generally addresses errors of law made by the trial judge where the trial judge was asked to make a ruling by the lawyers, whereas PCRA proceedings most often involve claims of ineffective assistance of counsel. Thus, a direct appeal claim would be that the judge should have granted a motion, while the PCRA claim would be that the lawyer was ineffective in failing to bring a legitimate motion.

There are exceptions to this rule, however, pursuant to Commonwealth v. Holmes. For example, a defendant may potentially raise a PCRA claim on direct appeal where the ineffectiveness is so apparent that immediate consideration would best serve the interests of justice. In such a case, the defendant generally must raise the claim in a post-sentence motion and agree to waive their right to file a PCRA following the direct appeal. Courts are most likely to address the PCRA claims early when the defendant is serving a short sentence which could expire before a PCRA may be filed. A defendant must be serving a sentence in order to file a PCRA, so if the sentence has expired, the defendant cannot litigate a PCRA. Here, the defendant had received a short sentenced, and he argued that the exception applied.

Because the defendant was unlikely to have sufficient time to file a PCRA following the appellate process, the Superior Court agreed to review the claim. The Superior Court concluded that the trial court should have permitted the defendant to raise his IAC claims in the post-sentence motions and on direct appeal because his short sentence would not afford him a realistic ability to obtain consideration of his IAC claims during a PCRA review. The Superior Court therefore addressed the issues on the merits.

The Court agreed with the defendant’s claims. It reasoned that when evidence is improperly admitted, the error is subject to harmless error analysis. The defendant argued that Sergeant Wharton’s testimony constituted improper legal opinion testimony by providing a legal conclusion. The trial court did not address the admissibility of this testimony but determined that it was harmless error, while the Commonwealth argued that his testimony simply explained with what he was charged and why. The Superior Court agreed with the Commonwealth that Sergeant Wharton did not interpret the law. Instead, he testified based on his own observations whether he saw evidence that the defendant would soon engage in hunting activities.

Regarding Sheriff Levindoski’s testimony, neither the trial court nor the Commonwealth addressed the admissibility of his testimony, though both explained that any error was harmless. The Superior Court agreed with the defendant, stating that Sheriff Levindoski should not have testified to the contents or his interpretation of Section 6106.1 since he had served as a lay witness, not an expert witness. Further, any testimony regarding § 6106.1 was irrelevant because the defendant was not charged with violating that statute.

The Superior Court also disagreed with the trial court’s assertion that the error was harmless and that the evidence was overwhelming. Although the defendant’s girlfriend testified that the defendant never said he was going fishing, the defendant did not testify that he planned to take his girlfriend fishing with him. Additionally, none of the officers testified to searching the trunk of the vehicle, where the defendant claimed that he had kept the fishing equipment. Finally, none of the officers testified to asking the defendant about his intent to go fishing. Thus, the Superior Court asserted that the issue for the jury to resolve was the defendant’s credibility and that the evidence against the applicability of the Sportsman’s Permit Exception was not overwhelming. The Superior Court also found that the Commonwealth relied on Sheriff Levindoski’s inadmissible testimony in its closing argument, proving the error was not harmless. Specifically, the Commonwealth emphasized the prohibition against carrying a loaded firearm in a vehicle under Section 6106.1, which had been introduced under Sheriff Levindoski’s testimony, though this had nothing to do with the Sportsman’s Permit Exception, and the defendant had not been charged with a Section 6106.1 violation. The Superior Court explained it could not conclude that Sheriff Levindoski’s testimony did not contribute to the verdict. Therefore, the Superior Court vacated the judgment of sentence and remanded for a new trial.

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. 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.