Philadelphia Criminal Defense Blog

Zak Goldstein 6/14/23 Zak Goldstein 6/14/23

PA Supreme Court: Trial Court May Not Revoke Probation Before It Begins

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Rosario, holding that a trial court may not revoke a probationary sentence before it begins. This decision is extremely important as it provides a great deal of protection to individuals who are still serving the incarceration or parole portions of sentences that have a probationary tail. Previously, a judge could revoke a consecutive probationary tail and sentence a defendant up to the maximum possible sentence for the offense. With parole, however, the maximum possible sentence is the portion of the jail sentence that has not yet been served. This case upholds the Superior Court’s ruling in Commonwealth v. Simmons which prohibited a longstanding practice of judge’s finding a defendant in violation of probation which has not yet started.

The Facts of Rosario

In Rosario, the defendant pleaded guilty to carrying a firearm without a license and drug charges. He received a sentence of 2.5 - 5 years’ incarceration followed by five years’ probation. He made parole before the maximum prison sentence expired, and while on parole, he was arrested and charged with kidnapping and then shooting a man. The Commonwealth prosecuted him for attempted murder and related charges in the new case. The trial court also revoked Rosario’s parole and probation in the original gun and drug case. The trial court sentenced him to the remaining unserved sentence of his five year prison term (improperly in this case as the parole board had jurisdiction) as well as an additional 5 - 10 years’ incarceration and five years’ probation for the violation of the probation on the drug charges. Rosario’s probation, however, had not yet started at the time of the new offense. The court had run the probation consecutively to the prison sentence, so he was still on the parole portion of the sentence.

Rosario appealed to the Pennsylvania Superior Court. While his appeal was pending, the Superior Court decided the case of Commonwealth v. Simmons. In Simmons, the Superior Court held that a trial court may not find someone in violation of probation which has not yet started. In other words, the law does not allow anticipatory probation violations. Accordingly, the Superior Court applied the new rule of Simmons to Rosario’s case, vacated the prison sentences on the drug charges because the probation had not started when he committed the new crime, and remanded the case to the trial court for re-sentencing. The Commonwealth appealed to the Pennsylvania Supreme Court, and the Supreme Court accepted the case.

The Supreme Court’s Ruling

The Supreme Court affirmed and held that anticipatory probation violations are illegal. Examining the language of the statute, the Court found that a trial court may only revoke a probationary sentence which has already begun. For example, one portion of the statute specifically provides that the court may “revoke an order of probation upon proof of the violation of specified conditions of the probation.” 42 Pa.C.S. §9771(b). In other words, only a violation of the probation itself may trigger revocation, not a violation of a probation order before the probation term has started. A different section requires the court resentencing a defendant following a revocation to give “due consideration . . . to the time spent serving the order of probation.” 42 Pa.C.S. §9771(b). Obviously, if the probation had not yet started at the time of the violation or revocation, then the court could not consider how the defendant had done on probation or for how long the defendant had been on probation. Likewise, another section provides: “[t]here shall be no revocation” of probation “except after a hearing at which the court shall consider . . . evidence of the conduct of the defendant while on probation.” 42 Pa.C.S. §9771(d).

Ultimately, numerous sections of the statute direct the resentencing court to consider how the defendant did while on probation, how long the defendant was on probation, and whether the probation itself was violated. None of these things can be evaluated for someone who has not yet started their probation, suggesting that the legislature intended that only probation which has begun can be violated. The court therefore found that the statute is unambiguous and the plain language prohibits an anticipatory violation. Even if the statute were ambiguous, however, the rule of lenity would apply. The rule of lenity requires that any ambiguity in a criminal statute be construed in favor of the defendant. Therefore, the Supreme Court affirmed. A trial court may not find a defendant in violation of a consecutive period of probation when the defendant is still in custody or on parole.

There are ways around this ruling for pending and future cases, however. Previously, trial judges would often sentence a defendant to a prison sentenced followed by a period of probation on the lead charge and no further penalty on the remaining counts. For example, a defendant charged with carrying a firearm without a license and carrying a firearm on the streets of Philadelphia might receive a sentence of 11.5 - 23 months in jail followed by two years’ probation on the carrying without a license offense and no further penalty on the carrying on the streets of Philadelphia count. Now, a judge can impose 11.5 - 23 months’ incarceration on one offense and concurrent probation on the other so that the probation will start immediately. This limits the overall potential maximum penalty for a violation in that the probation is only on one offense, but it does still limit the effects of this ruling. For many defendants who are currently serving sentences of incarceration or parole, however, it provides a tremendous amount of protection against a probation violation for a probation sentence that has not started yet.

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. We have also won criminal appeals and PCRAs 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 6/7/23 Zak Goldstein 6/7/23

Federal Third Circuit Finds Felon in Possession of Firearm Laws Unconstitutional as Applied to Old, Non-Violent Offenses

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The United States Court of Appeals for the Third Circuit has decided the case of Range v. Attorney General. In Range, the Third Circuit held that the federal felon in possession of a firearm law, 18 U.S.C. § 922(g)(1), is unconstitutional as applied to a plaintiff whose only conviction was for a 30-year-old non-violent fraud offense. Under Range, prosecutors throughout the Third Circuit, which includes Pennsylvania, New Jersey, and Delaware, will now have significant difficulties in bringing prosecutions against defendants who are found with firearms which they would otherwise not be allowed to possess due to non-violent convictions. The case, however, leaves open the questions of exactly which convictions will still prohibit a person from possessing a firearm and whether a more recent non-violent offense could still trigger the prohibition on firearm possession by a felon.

The Facts of Range

In 1995, Range pleaded guilty in the Lancaster County Court of Common Pleas to one count of making a false statement to obtain food stamps. At the time, a violation of that statute was classified as a a misdemeanor of the first degree under Pennsylvania law. A misdemeanor of the first degree may be punished by up to five years in prison. Range had lied about his income on the food stamp application, and he received a sentence of probation. He also had to pay restitution.

Range’s conviction, however, prohibited him from possessing a firearm or ammunition. Under the federal law, §922(g), anyone with a felony conviction generally may not possess a firearm that has been transported in interstate commerce.

The federal definition of a felony, however, can be somewhat confusing. The federal statute defines a felony as any federal offense punishable by more than one year in prison regardless of the sentence that the defendant actually received. This means that a defendant who pleaded guilty to conspiracy to commit securities fraud, which could have a five year maximum, would be prohibited from possessing a firearm even if the defendant received a probationary sentence or a prison sentence of one year or less.

The federal definition of “felony” also includes state court crimes. But for state court crimes which have been designated by the state as a misdemeanor, the law only prohibits firearm possession if the offense of conviction is punishable by more than two years.

Pennsylvania has three degrees of graded misdemeanors as well as various ungraded misdemeanors. Misdemeanors of the third degree are punishable by up to a year in prison, and misdemeanors of the second degree are punishable by up to two years in prison. First offense DUIs and drug possession charges are ungraded misdemeanors. For example, a first DUI has a maximum penalty of six months’ incarceration, and possession of a controlled substance has a maximum of one year in prison. Misdemeanors of the first degree, however, are punishable by up to five years in prison. Accordingly, misdemeanors of the first degree prohibit a person from possessing a firearm under federal law even if Pennsylvania law would still allow firearm ownership. This means that even some DUI offenses may trigger a permanent, lifetime bar on firearm possession under federal law because many second and third DUI offenses may be graded as misdemeanors of the first degree or worse. Likewise, a second offense possession of a controlled substance usually carries a maximum of three years in jail, so that offense also would trigger a lifetime ban on firearm possession.

In short, a conviction for any federal offense with a maximum penalty of more than one year or any state misdemeanor with a maximum of more than two years would trigger a lifetime ban on firearm possession under federal law. Prior to Range, this was true regardless of the nature of the offense or the sentence that the defendant received; the only thing that mattered was the maximum possible sentence.

Range, however, filed a lawsuit in the United States District Court for the Eastern District of Pennsylvania seeking a declaration that the federal statute violates the Second Amendment as applied to him. He argued that but for the statute, he would purchase a gun for self-defense or for hunting. And he argued that because his only conviction was for a thirty-year-old non-violent state court misdemeanor, the statute unconstitutionally violates his right to possess a firearm.

The Third Circuit’s Ruling

In a somewhat surprising ruling, the Third Circuit went en banc (meaning more than three judges heard the case) and overwhelmingly voted that the statute prohibiting firearm ownership for all federal felons did in fact violate Range’s Second Amendment rights. The Court’s analysis focused primarily on the United States Supreme Court’s recent ruling in New York State Rifle & Pistol Ass’n, Inc. v. Bruen. There, the United States Supreme Court struck down New York’s prohibition on carrying a firearm outside of the home. The Court also provided an entirely new rubric for testing the constitutionality of firearms regulations. Bruen requires a court to focus on whether the Second Amendment applies to a person and his proposed conduct. If it does, then the government bears the burden of proof to “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”

Here, the Court found that Range is one of the people to whom the Second Amendment applies because he is a citizen of the United States. Therefore, the government had to try to justify the regulation prohibiting from possessing a firearm by pointing to similar laws existing around the time of the founding of the United States. The Court ultimately concluded that there were no similar laws which would have prohibited someone with an old, non-violent fraud offense from permanently possessing a firearm. Accordingly, the statute is unconstitutional as applied to Range, and it may not be applied to him or people like him. Unless the United States Supreme Court decides to review the case, Range may possess a firearm for hunting or self-defense.

The question remains as to how broadly the courts will read this opinion. For example, the Court did not find that felons convicted of violent crimes may still possess firearms. It also did not really define non-violent offenses as there are all sorts of crimes that could be considered violent or not depending on one’s definition. Finally, it did not clarify how old an offense should be before it no longer matters. Had Range’s conviction been more recent, for example, would the prohibition have been constitutional.

In the short term, there will be numerous challenges to both federal and state firearms regulations, and it appears that no regulation is safe. Exactly which crimes prohibit possession and for how long is now debatable. Laws prohibiting people under 21 or who have active protection from abuse orders against them from possessing a firearm may also be unconstitutional. A Texas federal appellate court found that the federal prohibition on possessing a firearm while being the subject of an active PFA order is unconstitutional, and other courts have found that states may not prohibit 18 - 20 year olds from carrying firearms. It remains to be seen whether background check laws and even straw purchase laws may be enforced by the police and prosecutors. Ultimately, these decisions will be decided by the courts, and many statutes may have to be revised by various legislatures. And while many laws may eventually be struck down, you should not assume that any given law is unconstitutional as violating a statute could still have enormous consequences. However, if you have been charged with illegal firearm possession, you should immediately speak with an attorney. There may be constitutional challenges to the statute under which the charges were filed.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

Zak Goldstein 5/31/23 Zak Goldstein 5/31/23

PA Superior Court: Unprovoked Flight in High Crime Area Still Justifies Stop of Suspect

The Pennsylvania Superior Court has decided the case of Commonwealth v. Barnes, holding that unprovoked flight in a high crime area justifies the detention of the person fleeing even if the police do not make any other observations of criminal activity. This is true even if the police observe no other factors that could give rise to reasonable suspicion - unprovoked flight and a high crime area, with nothing more, is enough for the police to stop someone and potentially frisk them.

The Facts of Barnes

In Barnes, the police were traveling in a police car at an intersection in a high crime area. The police department considered the area to be so bad that they routinely had a police car simply park at that corner at all times in order to try to prevent crime. The officers were driving in the area when they observed a group of about five or six people on the northeast corner of 8th and Clearfield. The group began to scatter as the police approached, and each member began walking in a different direction.

The defendant began walking southbound towards the patrol car with at least one other male. One of the officers got out of the car and turned his flash light on. The defendant then ran. The officers chased him, and the defendant eventually tripped and fell. The officers caught him, saw that he had a fanny pack, and they started to frisk the fanny pack. They asked if he had a gun in it, and he said yes. They found a gun in the fanny pack. The defendant then said he was on probation and did not have a license to carry.

The Motion to Suppress

The trial court granted the defendant’s motion to suppress, finding that police stopped him without reasonable suspicion or probable cause because they observed nothing more than flight in a high crime area. The court reasoned that because the police had no specific information about the defendant, did not see any criminal activity, and were not responding to any kind of radio or 911 call, they had no reason to stop the defendant. Therefore, the court suppressed the gun, and the Commonwealth appealed.

The Superior Court Appeal

The Superior Court promptly reversed the suppression order. The court noted that the case law has long held that unprovoked flight from police in a high crime area justifies an investigative detention of the suspect. Therefore, the police were allowed to chase the defendant and try to figure out why he ran away from them for seemingly no reason. Mere presence in a high crime area alone does not justify a stop, but when that presence is coupled with unprovoked flight, the police may investigate. There is no requirement that the police see specific criminal activity or receive a 911 call directing them to stop the defendant.

As the defendant had fled for no reason and had a bag which could have contained a gun, the police were then justified in asking if the bag had a gun in it. The court ruled that the police had not actually arrested the defendant before finding the gun - they had just tried to stop him to figure out what was going on. Therefore, the Superior Court reversed the order granting the motion to suppress and remanded the case for trial. The defendant will now face trial on the firearms charges.

Facing criminal charges? We can help.

Zak Goldstein 5/29/23 Zak Goldstein 5/29/23

PA Superior Court: Concussion May Be Serious Bodily Injury Under Aggravated Assault Statute

The Superior Court has decided the case of Commonwealth v. Santiago, holding that a concussion alone may meet the definition of serious bodily injury as required for an aggravated assault conviction. The defendant had been convicted of aggravated assault and appealed the conviction. He argued that a concussion alone did not amount to serious bodily injury. The Superior Court, however, disagreed. Medical testimony introduced at trial established that a concussion impairs the brain for a protracted period and could be indefinite in extreme circumstances. Therefore, the court affirmed the conviction.

The Facts of Commonwealth v. Santiago

In July 2019, police responded to a noise complaint. When officers arrived on the scene, they discovered an impromptu block party. Various partygoers insulted and threatened the officers, and the officers eventually decided to arrest one of them. That person fled, and the officers chased him to his apartment building.

Other people at the apartment building tried to help the defendant. Someone knocked an officer to the ground. When the officer stood back up and called for help, the defendant punched the officer in the face. The officer fell backwards down four steps and hit his head on the metal leg of a picnic table. He became disoriented and nearly lost consciousness. There was also some bleeding.

The officer was diagnosed with a concussion at the hospital and missed two weeks of work. He continued to suffer from migraines, visual impairment, and confusion for about a month. The Commonwealth charged the defendant with aggravated assault and related charges. A jury convicted him, and the trial court sentenced the defendant to an aggregate of seven to fourteen years’ incarceration. The defendant filed a timely appeal, raising the issue that one punch resulting in a minor concussion is insufficient to support a conviction for aggravated assault.

The Superior Court Appeal

The defendant appealed, arguing that punching an officer one time and causing only a minor concussion from which the officer recovered was not an aggravated assault as a felony of the first degree. First degree felony aggravated assault requires that a defendant either specifically attempt to cause serious bodily injury and fail to do so or that a defendant intentionally, knowingly, or recklessly under circumstances manifesting an extreme disregard to the value of human life actually cause serious bodily injury. Therefore, the issue in this case was whether the defendant actually caused serious bodily injury.

The defendant argued that the concussion in this case was not a serious bodily injury. Serious bodily injury is either, 1) harm creating a substantial risk of death, 2) harm creating serious, permanent disfigurement, or (3) harm causing protracted loss or impairment of a bodily member or organ. Here, the court found that the concussion fell within the third category. The officer’s treating physician testified that the concussion altered brain function and caused an impairment to brain function that could be protracted. In extreme cases, the potential effects of a concussion can be indefinite. Therefore, concussing someone during an assault may be sufficient to be deemed serious bodily injury and rise to the level of aggravated assault.

This case makes it easier for the Commonwealth to obtain a conviction for aggravated assault. Concussions obviously occur with some regularity, and most people recover without any major issues. Therefore, a concussion probably should not equate to serious bodily injury. But here, likely because the case involved a police officer as the victim, the court upheld the conviction and found that a concussion may be serious bodily injury even where the victim recovers quickly.