Philadelphia Criminal Defense Blog

Zak Goldstein 7/25/23 Zak Goldstein 7/25/23

PA Superior Court: Adult Conviction May Require SORNA Registration for Some Offenses Committed as Juvenile

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

The Pennsylvania Superior Court has decided the case of Commonwealth v. Asbury, holding that a sentence including lifetime registration under the Sex Offender Registration and Notification Act (SORNA) as a Sexually Violent Predator(SVP) may be imposed on a defendant convicted as an adult for acts committed as a juvenile. This holding also applies to individuals charged as adults for crimes they committed as juveniles. This means that an individual could commit a crime qualified as a non-delinquent act while under the age of eighteen and not be tried or convicted of that act until they are 35 and still be required, under SORNA, to register as a sex offender for the remainder of their life. In most cases, SORNA registration does not apply to offenses committed as a juvenile, but as Asbury shows, there are some exceptions to that general rule.

The Facts of Asbury

The defendant was sixteen years old when he committed two counts of rape by forcible compulsion. The first count involved the use of a firearm to aid in the commission of the offense, and the second count involved physically overpowering the victim with no weapon used. The first count is not considered a delinquent act under the Juvenile Act codified under 42 Pa.C.S.A. § 6302 because the defendant was over the age of fifteen at the time of the rape and it involved the use of a deadly weapon. Instead, Pennsylvania law provides that this conduct is only a crime rather than a delinquent act. Part of the guilty plea that was agreed upon by both parties was that the defendant was to have the court determine whether he was required to register as a sex offender pursuant to the Sex Offender Registration and Notification Act (SORNA). The determination whether the defendant should register as a sex offender was only for the first count as that count involved a handgun. The second count, which did not involve a deadly weapon, would not trigger sex offender registration because the defendant committed the crime as a juvenile.

The court also ordered the Sexual Offenders Assessment Board (SOAB) to conduct an assessment of the defendant to determine if he met the criteria for classification as a sexually violent predator (SVP) under Pennsylvania law. The SOAB ultimately concluded that the defendant should be classified as an SVP, and the trial court agreed. Pursuant to the plea agreement, the court sentenced the defendant to 60 to 120 months’ incarceration as well as lifetime sex offender registration. The defendant appealed.

The Superior Court’s Decision

On appeal, the defendant argued that he should not have to register as a sex offender pursuant to SORNA because he had committed the crimes as a juvenile. The Pennsylvania Supreme Court previously ruled in the case of In re J.B. that juvenile offenders have a protected right to reputation which is encroached on by SORNA’s presumption of recidivism, the presumption is not universally true, and there are alternative means for ascertaining the likelihood of reoffending. Therefore, requiring juveniles to register based solely on the offense of adjudication violates the Pennsylvania Constitution. The Court also held that the application of SORNA’s current lifetime registration requirement upon adjudication of specified offenses violates juvenile offenders’ due process rights by utilizing an irrebuttable presumption. Following J.B., the Superior Court ruled in Commonwealth v. Haines that the PA Supreme Court’s holding should apply with equal weight to a defendant convicted as an adult for crimes committed as a juvenile.

In this case, however, the Superior Court affirmed the sentenced registration requirements. The court rejected the defendant’s argument based on J.B. and Haines that the lifetime reporting requirements, for acts committed as a juvenile, under SORNA violated his due process rights by “utilizing an irrebuttable presumption” of a high likelihood of recidivism, even though that presumption is not “universally true.” The court accepted the Commonwealth’s argument that while it is unconstitutional to require lifetime SORNA reporting for “delinquent acts” committed by a juvenile even if later convicted and sentenced as an adult, the specific crime the defendant committed which led to his SVP classification did not qualify as a “delinquent act” under the Juvenile Act. The Court based its decision on the rationale that the Pennsylvania State Legislature specifically excluded certain crimes committed by juveniles from classification as “delinquent acts” because there are crimes that are so heinous that they require individuals to be tried as adults. The Court further reasoned that SVP classification is not a punitive measure designed to punish defendants; instead, it is a safety measure designed and applied to protect the community at large.

The Impact of Asbury

The Court’s ruling highlights the importance of the specific statutory language in Pennsylvania’s laws. In many cases, criminal charges are not brought until long after the acts have been committed, and sometimes convictions occur for adults who committed these crimes as juveniles. Just because an act is committed by a juvenile does not mean the act qualifies as a “delinquent act,” affording the individual certain protections that they would have had had they been charged sooner. Certain crimes committed by juveniles are always essentially adult crimes and may result in adult consequences.

At the same time, most sex offenses committed as a juvenile for which someone can be prosecuted as an adult do not trigger SORNA registration under Haines. In order for a court to impose a registration requirement on an adult who has been prosecuted for an offense they committed as a juvenile, either 1) the offense must have been committed with a deadly weapon, 2) the defendant must have had a prior serious sex offense, or 3) the court must find the defendant to be a sexually violent predator. Otherwise, the defendant should not have to register.

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Goldstein Mehta LLC - Philadelphia Criminal Defense Attorneys

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 7/20/23 Zak Goldstein 7/20/23

PA Superior Court: Defendant Must Show Link Between Case and Trial Judge's Subsequent Arrest in Order to Win New Evidence PCRA

Philadelphia Criminal Defense Lawyer Zak T. Goldstein,

The Pennsylvania Superior Court has decided the case of Commonwealth v. Myers, holding that the trial court properly denied the defendant’s PCRA petition because the defendant failed to show that unrelated corruption by the trial judge tainted the conviction in his case. Myers shows the importance of actually linking subsequent misconduct by police and court officials to the defendant’s individual case. Where the defendant can show only that the police or judge did something wrong that was unrelated to the case, the defendant is unlikely to prevail in PCRA litigation.

The Facts of Myers

Myers pleaded guilty to third-degree murder. Pursuant to a negotiated guilty plea, he received a sentence of 20 – 40 years’ incarceration. His co-defendant also pleaded guilty and received a shorter sentence. Two or three years later, the trial judge resigned from the bench because he had been caught stealing drugs from an evidence room in the courthouse. The judge pleaded guilty to related crimes, and the Supreme Court permanently disbarred him.

About seven years later, Myers filed a Post-Conviction Relief Act Petition arguing that he should receive a new trial as a result of the judge’s corruption. Myers invoked the newly discovered evidence exception. Ordinarily, a PCRA petition must be filed within a year of a defendant’s sentence becoming final. There is an exception, however, for when a defendant uncovers new evidence which could not have been discovered prior to trial through the exercise of due diligence and that evidence calls the validity of the conviction in to doubt. In that case, the statute allows the defendant a new one year window in which to file a PCRA petition and seek a new trial based on the new evidence.

Here, the judge resigned from the bench in 2012 and was convicted in 2015. The defendant, however, did not file his PCRA petition until 2022. He claimed that he did not learn of the judge’s corruption until shortly before he filed his petition because he did not have access to many resources while in prison.

The trial court denied the petition. It found that 1) the judge’s conviction had been a matter of public record since at least 2015, so the defendant should have filed a petition within the 60 day deadline for new evidence that applied at the time, 2) the defendant admitted in his petition that he found out about the conviction in March 2021 but did not file the petition within the old 60 day deadline, and 3) the defendant failed to link the judge’s conviction to his own case or show how the judge’s drug theft and issues affected his ability to accept the negotiated guilty plea. The defendant appealed.

The Superior Court’s Decision

The Superior Court affirmed the denial of the PCRA petition. The Court rejected the trial court’s first two reasons but accepted the third. Specifically, the defendant was not required to file anything within 60 days of the conviction becoming public because the public records presumption no longer applies. Recognizing that inmates do not necessarily have access to the news or legal databases, the Supreme Court eliminated the presumption that inmates are aware of public records like court documents in a case called Commonwealth v. Small in 2020. Therefore, the defendant was not expected to know about the judge’s conviction or resignation.

Second, a PCRA based on newly discovered evidence must be filed within a year based on a 2018 amendment that extended the deadline from 60 days to one year. As the trial court denied the petition for not having been filed within 60 days, the Superior Court found that the trial court erred for that reason, as well. The court simply failed to recognize the amendment to the law.

The Superior Court affirmed on the third reason, however. The Court found that the defendant failed to show that anything about the judge’s illegal behavior tainted his own case. The defendant had accepted a negotiated guilty plea, meaning he agreed to plead guilty and that he and the Commonwealth would recommend the same sentence to the judge. The judge accepted that negotiated plea. Thus, even if the judge had significant corruption or personal issues, there was nothing about those issues that would have affected the guilty plea or the defendant’s decision to plead guilty. In other words, the defendant was unable to show that anything about the judge’s behavior actually affected the case.

Finally, although the Court did not apply the old public records presumption, it did express skepticism that the defendant would not have heard about the judge’s behavior for so long. Although the presumption no longer applies, a defendant must be able to plead and prove that they acted with due diligence and could not reasonably have learned of the new evidence sooner. Here, the defendant failed to do so. Therefore, the Court affirmed the denial of the petition.

The Impact of Myers

The Court’s ruling shows the importance of linking a judge or police officer’s misconduct to the defendant’s specific case. In many cases, detectives or police officers get arrested long after a defendant has been found guilty and sentenced. In those cases, the arrest is often not the officer’s first incident of misconduct, and the Commonwealth and/or police may have had information in their files as to other acts of misconduct that should have been disclosed prior to trial. In that case, it may be possible to invoke the newly discovered evidence exception and allege a Brady violation. In other cases, there may not have been anything that the Commonwealth should have disclosed at the time, but the misconduct may have been so similar to something that happened in the defendant’s case that it calls the legitimacy of the defendant’s conviction into question. For example, if a witness claimed that the police coerced them into giving a statement and the officer involved is later disciplined for doing something similar, it may be possible to argue that the behavior is so similar that it should allow for a new trial under the newly discovered evidence exception.

Ultimately, the mere fact of a subsequent arrest or disciplinary action against someone involved in the case does not automatically result in a new trial. When a detective, judge, or prosecutor gets arrested after someone has been convicted, it is critical to understand when the exception applies and when it does not. It is also important to re-investigate the case thoroughly in order to establish any possible links between the misconduct and the defendant’s case.

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

Zak Goldstein 7/6/23 Zak Goldstein 7/6/23

PA Supreme Court: Parole Agents May Add Conditions of Supervision, Probation Officers May Not

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Koger, holding that the statutes governing state parole differ from those governing probation and allow parole agents to add conditions of supervision that were not included as part of the original sentencing order. This means that in some ways, probation provides more protections than parole. A probationer may not be convicted of violating probation conditions which were not ordered by the sentencing judge on the record at the time of sentencing, but a parolee may be found in violation of parole for violating conditions which were later imposed by the supervising parole agent.

The Facts of Koger

The defendant pleaded guilty to possession of child pornography and criminal use of a communications facility. The charges stemmed from an incident in which his daughter found contraband images on his cell phone. He pleaded guilty in state court and received a sentence of 8 - 23 months’ incarceration followed by three years’ probation. The court also ordered him to have no contact with any of the victims or persons displayed in the images, to submit to a drug and alcohol evaluation, to complete any recommended treatment, perform 100 hours of community service, and complete sexual offender counseling.

The court did not advise the defendant of the general conditions of probation or parole at the time of sentencing. Instead, a probation officer explained the general conditions of Washington County, PA’s probation and parole immediately following the sentencing hearing. None of those conditions were put on the record or placed in the sentencing order.

As the defendant had already served the minimum sentence, the court immediately paroled him. A few weeks later, the defendant violated his parole by possessing pornographic images. The trial court revoked his parole and sentenced him to his back time with work release for the parole violation. It resentenced him to another three years’ probation to run consecutively on the CUCF charge.

Following his release, the Commonwealth again charged him with violating his probation and/or parole. This time, the Commonwealth alleged that he violated some of the conditions of probation and parole which were not put on the record at the time of sentencing but were instead explained by the probation officer following sentencing. For example, the Commonwealth charged him with failing to report and consent to searches, violating criminal laws, committing assaultive, threatening, or harassing behavior, and failing to avoid unlawful and disreputable places.

Ultimately, the alleged violations stemmed from an incident in which the probation officers conducted a home visit and asked to search the defendant’s home. He refused to let them search the phone, they had to use force to detain him, and when they searched the phone, they found explicit chats between the defendant and a user who identified themselves as a 15-year-old female. They also found more illegal pornography. Finally, the defendant also threatened the probation officer as the officer dropped him off at the jail.

The trial court found that the defendant violated his parole and probation by committing technical violations. It revoked both the probation and parole and sentenced him to his back time for the parole violation and 1 - 3 years’ incarceration for the probation violation.

The defendant appealed, challenging both the legality of the sentence and the sufficiency of the evidence supporting the revocation of probation and parole. The Superior Court remanded, finding that the record did not contain sufficient evidence as to whether the conditions of probation and parole were made part of the sentencing order and proceeding. The trial court issued a supplemental opinion conceding that the conditions were not part of the sentencing proceedings. The Superior Court therefore reversed and remanded, holding that the trial court could not find the defendant in violation of probation and/or parole conditions which were not imposed at the time of sentencing. The Commonwealth appealed to the Supreme Court, and the Supreme Court accepted the appeal.

The Supreme Court’s Ruling

The Supreme Court previously ruled in Commonwealth v. Foster that conditions of probation must be made part of the record at sentencing or a defendant cannot be charged with violating them. The issue in this case, however, was whether the same rules apply to a potential parole violation or whether parole agents/officers may impose conditions after sentencing. The Supreme Court agreed with the Commonwealth, finding that parole is different from probation and parole agents may add their own conditions even where the trial court has not specifically included those conditions in the sentencing order or put them on the record.

When it comes to probation, the statute directs that the court shall attach reasonable conditions . . . as it deems necessary to assist the defendant in leading a law-abiding life. A sentencing court may impose somewhat general conditions and then leave it to the probation officers to provide more specifics, but the basic conditions must be imposed by the sentencing court.

The statute, however, does not mention parole. Instead, the only relevant statute directs that when imposing a county sentence, the sentencing court shall place the inmate in the charge of and under the supervision of a designated probation officer. Therefore, the probation officer may decide the conditions of supervision during county parole.

State parole is also different as the Prisons and Parole Code authorizes the Parole Board to make general rules for the conduct of parolees and establish special conditions for supervision. The parole statute specifically authorizes the board to establish the conditions of supervision. Thus, the statutes require the sentencing judge to decide the conditions for probation, but it allows much more discretion to a state parole agent or county parole officer.

Therefore, the trial court properly found the defendant in violation of his county parole even though the conditions were imposed by a probation officer rather than the court. The probation violation was illegal, however, because the conditions for probation were not decided by the judge. This results in significant differences between probation and parole. For parole, the parole agent or officer may decide the conditions of supervision. But for probation, any conditions must be placed on the record at the time of sentencing.

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Goldstein Mehta LLC Criminal Defense Lawyers

Zak Goldstein 6/22/23 Zak Goldstein 6/22/23

PA Supreme Court: Prosecutor’s Reference to Defendant’s Post-Arrest Silence Requires New Trial

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Rivera, holding that even a brief mention of a defendant’s post-arrest silence by the prosecution will almost always require a new trial. Both the state and federal constitutions give an individual the right to remain silent and not speak with the police. This case recognizes that such a right would be meaningless if the government could then argue at trial that the defendant is guilty because they refused to make a statement. It is important to note, however, that courts are much more likely to reverse a conviction where the government tries to take advantage of post-arrest silence than silence that occurred prior to an arrest or the giving of Miranda warnings.

The Facts of Rivera

In Rivera, the defendant was accused of sexually abusing a number of minors. The Pennsylvania State Police investigated the case, and they eventually filed rape charges against him. The police went to his house to arrest him, advised him of the charges, and read him his Miranda warnings. They then formally placed him under arrest. The defendant did not say anything at that time; he did not incriminate himself, and he also did not deny the allegations. Instead, he remained silent. He had an absolute right to do so under the Pennsylvania and United States Constitutions.

The defendant proceeded by way of jury trial. At trial, his defense attorney challenged the credibility of the witnesses. The defense centered around arguing that the complainants were not telling the truth and that they had made up the allegations. During the cross-examination, the defense attorney asked the investigating state trooper a number of questions about the investigation in order to show that the trooper had not done much of an actual investigation. One of those questions was whether the trooper had spoken with the defendant, and the trooper said that he had tried to but was unsuccessful. On re-direct, the prosecutor asked the trooper about the Miranda warnings. Specifically, the following exchange occurred:

Q. [Commonwealth Attorney]: I’d like to direct your attention to June 26, 2018, at about 1400 hours, did you . . . go to the home of [Rivera]?
A. [Trooper Higdon]: Yes.
Q. And was he arrested based on the arrest warrant?
A. I had an arrest warrant in hand, correct.
Q. At approximately 1430 hours, did you read [Rivera] his Miranda [w]arnings?
A. Yes.
Q. So what, what are the Miranda [w]arnings?
A. Miranda [w]arnings are, I’ll say in easy terms of their right to remain silent.
Q. Okay. After you read him his Miranda warnings, he never told you that he didn’t do anything to any of these kids?
A. No.
Q. He never denied doing anything to –
Defense Counsel: Objection to that. A person doesn’t have to deny.
The Court: You’re correct, I think he’s just asking if he did. You may answer.
A. He did not deny.
Q. He never said[,] I didn’t do this?
A. No.
Q. What did he say?
A. Nothing, he said he wished not to talk.
Q. No more questions.

As is reflected in the exchange, the defense attorney objected to this line of questioning, but the trial court overruled the objection. The trial court did not provide a cautionary instruction to the jury. The jury convicted on many of the charges, and the defendant appealed.

The Superior Court affirmed. It held that the prosecutor should not have asked the questions about the defendant’s response to receiving his Miranda warnings, but it found that the error amounted to harmless error. It also found that the prosecutor’s questioning was a fair response to the defense’s opening the door on the issue by asking if the trooper had spoken with the defendant. The defendant petitioned the Pennsylvania Supreme Court for review, and the Supreme Court granted allocatur.

The Supreme Court’s Ruling

The Pennsylvania Supreme Court reversed the conviction. The Court emphasized that the prosecution simply may not ask questions about a defendant’s decision to remain silent after being arrested and receiving Miranda warnings. The issue is more complicated when a defendant has not yet been arrested - in that case, the courts may be more forgiving should a police witness testify that a defendant did not give a statement while describing the steps that the officer took to investigate the allegations.

Post-arrest, however, there is an absolute right to remain silent, and the prosecution may not try to take advantage of silence in order to suggest that a defendant is guilty. Indeed, the Court noted that “referencing a defendant’s post-arrest silence may imperil an entire case.” Even though the evidence in this case appeared to be strong, the Court found that the error was not harmless. First, it found that the reference to silence was not de minimis - the prosecutor had asked four questions about it. Second, the evidence was not merely cumulative of other evidence in the case. Third, the evidence was not so overwhelming that the defendant could not have been prejudiced. Accordingly, the Court granted Rivera a new trial.

In general, the prosecution may not use a defendant’s silence against them at trial. Even references to pre-arrest silence may be inadmissible and lead to reversal on appeal. But this case makes it very clear that references to post-arrest silence are particularly problematic and that even just a few questions about it may lead to a new trial. Prejudice is essentially presumed when the prosecutor attempts to use a defendant’s post-arrest decision to remain silence against them.

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Criminal Defense Attorney Zak T. Goldstein, Esquire

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