Philadelphia Criminal Defense Blog

Zak Goldstein 5/3/23 Zak Goldstein 5/3/23

PA Superior Court Approves of Consolidation of Unrelated Drug Case With Drug Delivery Resulting in Death Case

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court has decided the case of Commonwealth v. Shackelford, holding that the trial court properly allowed the Commonwealth to consolidate the defendant’s possession with the intent to deliver case with his drug delivery resulting in death case. Police executed a search warrant at the defendant’s house in order to investigate a drug delivery homicide, and when they did so, they found a significant quantity of drugs. The drugs obviously could not have caused the decedent’s death as the death occurred prior to the execution of the warrant, but the trial court allowed the Commonwealth to try the cases together. The Superior Court affirmed, holding that the discovery of drugs during the execution of the search warrant would have been admissible in the homicide prosecution. The Court also rejected the defendant’s suppression challenge, finding that a reliable confidential informant provided sufficient probable cause for police to obtain a search warrant.

Commonwealth v. ShackelFord

In April 2021, the decedent was found unresponsive on her bathroom floor. She died in the hospital a few hours later, and police quickly began investigating her death as a potential drug delivery resulting in death homicide. The coroner subsequently determined that the cause of the woman’s death was combined drug toxicity. In her house, detectives located, among other things, cocaine, heroin laced with fentanyl and tramadol, associated drug paraphernalia, and the woman's cellphone. A search of her cellphone revealed that on the night before her death, she had been communicating with a number ending in "7678.” The number was labeled in her phone contacts as "Jazz." Detectives identified the phone number as belonging to the defendant. Fortuitously for the police, investigators were already investigating the defendant for dealing drugs. Investigators found a text message thread between the woman and the defendant which included a request from her to buy drugs. The texts also included messages between the two outlining when and where they would meet.

Detectives spoke with a confidential informant, and the CI told them that the defendant was known to sell drugs. Police thereafter executed a search warrant at the defendant's home based on information from the confidential informant. The police found approximately $7,900 in U.S. currency, over 250 wax paper bags of packaged fentanyl mixed with heroin, over 80 grams of methamphetamine, and quantities of cocaine and marijuana. The defendant later admitted to selling drugs and selling specifically to the woman who died. The Commonwealth filed two sets of charges against the defendant. The first case charged drug delivery resulting in death and criminal use of a communication facility in April 2021. The second case charged possession with intent to deliver fentanyl, possession with intent to deliver methamphetamine, possession of marijuana, and possession of drug paraphernalia for the contraband found in his home in August 2021.

The Commonwealth filed a motion to consolidate the cases and try them together. The defendant filed a motion to sever the cases and suppress the evidence found in his home, arguing that the police did not have probable cause for the search. The trial court heard the motions and denied both of them. In June 2022, the court held a consolidated jury trial on both cases. The defendant was found guilty of drug delivery resulting in death, criminal use of a communication facility, and two possession with intent to deliver charges. The trial court sentenced the defendant to an aggregate incarceration term of 11 – 25 years’ incarceration.

The Criminal Appeal

On appeal, the defendant raised two issues: (1) did the trial court err by failing to find that the search warrant lacked probable cause, and (2) did the trial court err by failing to order separate trials? In the first issue, the defendant argued that the search warrant was issued without probable cause, claiming that the CI’s claims were not credible. He argued that the trial court incorrectly decided the motion, and so all of the evidence obtained in the search should have been deemed inadmissible for trial.

The Superior Court’s standard of review on this issue is limited to the evidence presented at the suppression hearing. At a suppression hearing, the Commonwealth must prove that it did not obtain the challenged evidence in violation of the defendant's rights. The prosecution must prove this by a preponderance of the evidence. A preponderance of the evidence is the lowest burden of proof and requires the Commonwealth essentially to show that it is more likely than not that they did not violate the defendant’s rights. Further, in the absence of an allegation that the police lied in the search warrant, challenges to a search warrant are based solely on the information in the document's four corners. In determining probable cause, the courts utilize a totality of circumstances approach. Probable cause exists where the facts and circumstances are reasonably known and from a trustworthy source and a prudent person of reasonable caution would believe there is a possibility that evidence of a crime could be found in the location to be searched.

The Superior Court agreed with the trial court that the warrant established probable cause. The court reasoned that past information from the CI in question led to two felony convictions. The court further noted that the CI had engaged in an undercover drug purchase from the defendant and that the police had conducted independent surveillance to corroborate the CI’s information. Therefore, the Superior Court agreed with the trial court's assessment that the CI was credible and the warrant contained probable cause. The court rejected the suppression challenge.

In addressing the second issue, the defendant argued that evidence that he had drugs in August 2021 had no relevance in a homicide prosecution for events that took place in April 2021. The defendant argued that evidence from one case would not otherwise be admissible in the other and was merely used to smear him as a drug dealer. The Commonwealth argued that the evidence that he was involved in drug sales just a few months later was relevant to show that he could have been engaged in drug sales in April.

In deciding whether to consolidate or sever two separate cases, a court must determine: (1) whether the evidence of each of the offenses would be admissible in a separate trial for the other; (2) whether such evidence is capable of separation by the jury so as to avoid the danger of confusion; and, if so, (3) whether the consolidation of offenses will unduly prejudice the defendant.

The Superior Court noted that the defendant’s argument only focused on the first aspect. The court determined that the evidence of crimes other than those in question may not be admitted solely to show a defendant's bad character or propensity to commit the crime. However, evidence of other crimes is admissible to demonstrate motive, intent, absence of mistake or accident, a common scheme, plan, or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others or the identity of the person charged with the commission of the crime on trial. Additionally, evidence of other crimes is admissible when such evidence is part of the history of the case and forms part of the natural development of the facts.

Here, the trial court had reasoned that the cases should not be severed because the cases proved identity, and the discovery of the drugs was linked to the investigation into the homicide, so the events were connected. The Superior Court agreed with the trial court’s opinion, finding that evidence of each offense would have been admissible in a separate trial for the other. Therefore, the Superior Court affirmed.

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Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. 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 4/24/23 Zak Goldstein 4/24/23

Motion to Suppress Assault Rifle Granted

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire recently won the suppression of an assault rifle. In the case of Commonwealth v. WM, police charged WM with possession of a firearm by a prohibited person as a felony of the first degree. Prosecutors alleged that when police went to execute a search warrant at WM’s house, someone threw a bag out the window as the police entered the home. Police subsequently secured the home and recovered the bag from the lower roof area. Inside the bag, the police found an assault rifle.

The officers then questioned the occupants of the home. Two of them had no criminal history, and one one of them even had a license to carry a firearm. WM, however, was on state parole for a serious offense, so police immediately suspected him of possessing the long gun and throwing it out the window. WM eventually confessed to throwing it outside on video, so the police arrested him. Prosecutors charged him with a violation of the uniform firearms act (VUFA § 6105) for possessing a firearm while having a criminal record which makes gun possession illegal. WM was facing up to 20 years in prison and additional time in custody for a parole violation.

Fortunately, WM retained Attorney Goldstein for his case. Attorney Goldstein reviewed the search warrant and determined that the search warrant for the home was defective because police acted on stale information in applying for the warrant. As the warrant was defective, the subsequent entry into the home was illegal, and but for the illegal entry, no one would have thrown the gun outside. Therefore, Attorney Goldstein filed a motion to suppress the gun and confession, arguing that the four corners of the warrant did not contain legitimate probable cause to search the house.

In summary, the police were investigating a shooting and carjacking which took place on May 16, 2022. They conducted an extensive investigation which led them to believe that a certain juvenile had committed the shooting. The issue, however, was whether police had conducted enough investigation to conclude that the juvenile or evidence relating to the shooting would be found at WM’s home. The evidence that they had that the juvenile lived there was very limited. About a year prior to the execution of the warrant, the police encountered the juvenile outside of the house, and he stated that he lived there. They checked arrest records and found his mother’s name. They also found that his brother had reported living there about two months prior to the execution of the search warrant. Thus, the information they had was that the juvenile reported living there over a year ago and that his brother may have lived there two months ago. Accordingly, Attorney Goldstein argued that while it appeared that they had probable cause to search for the juvenile, they did not have current probable cause to believe that he lived at the address in question. There was also no reason to believe that evidence of the crime would be found about two months later as someone would be likely to get rid of the proceeds of a crime within two months.

In general, information must not be stale in order for it to amount to probable cause. The age of the information supporting a warrant application is a factor in determining probable cause. When the information is too old, he warrant is stale, and probable cause may not exist. Age is not the only factor, however. Instead, the age of the information must be compared against the nature of the crime and the type of the evidence for which the police are looking. For example, probable cause to search for electronic evidence may exist for much longer than probable cause to search for drugs. This is because computers often retain even deleted evidence for years, whereas drugs can be sold or disposed of within hours or days.

In this case, Attorney Goldstein successfully argued that police may have had probable cause to believe that the juvenile lived there a year ago, but without doing any background checks shortly before obtaining the search warrant, they had no reason to believe that he still lived there. They also had no reason to believe that even if he did live there, he would still be storing evidence of the crime at the house about two months after the crime took place. The Common Pleas judge agreed and granted the motion to suppress. The Commonwealth was therefore forced to withdraw the charges, and WM will be released.

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Criminal Defense Attorney Zak T. Goldstein, Esquire

Zak Goldstein 4/17/23 Zak Goldstein 4/17/23

PA Superior Court: Defendant Has Right to Attorney of Their Choice

The Superior Court has decided the case of Commonwealth v. Lewis, holding that a trial court has the power to disqualify an attorney from representing a criminal defendant but only in the most extreme circumstances. The Superior Court determined that this was not such a case as the Commonwealth and court failed to show that the alleged misconduct of the attorney could not be remedied or that the Commonwealth could not receive a fair trial.

Therefore, the trial court violated the defendant’s constitutional right to counsel by removing the defendant’s chosen attorney. The Superior Court vacated the defendant’s subsequent conviction which the Commonwealth obtained while he was represented by a different attorney and remanded for a new trial.

The Facts of Commonwealth v. Lewis

One evening in 2018, the defendant barricaded himself in his residence. An Emergency Response Team ("ERT") was summoned to the scene and communicated with the defendant to get him to surrender. Shortly after midnight, the defendant began shooting out of his residence. Over the next six hours, the defendant fired at least 30 shots, including several that struck an armored vehicle operated by ERT. Just after 7 a.m., the defendant left his residence and surrendered to ERT members.

The Commonwealth subsequently charged the defendant with 12 counts of attempted homicide, 24 counts of aggravated assault, 21 counts of recklessly endangering another person, two counts of possessing an instrument of crime, and one count of institutional vandalism. The defendant was appointed a public defender but quickly became dissatisfied with them. In 2019, the defendant retained private counsel to represent him. Just before the trial in 2020, the defendant’s attorney allegedly supplied body camera footage from an ERT member to a local newsgroup that aired the footage. The attorney also gave an interview commenting negatively on the lead officer’s professionalism.

The Motion to Disqualify

The Commonwealth filed pre-trial motions with various requests. The motions included a request to disqualify the defendant’s attorney for supposedly unethical actions that violated the Rules of Professional Conduct. The trial court held a hearing to determine if it should disqualify the lawyer. The trial court concluded that the attorney’s conduct placed the fairness and integrity of the defendant's trial in jeopardy. The court claimed that the unethical behavior of the attorney was an attempt to taint the jury pool by putting out irrelevant, inadmissible information that a jury would never see. The judge further opined that the attorney’s actions must have been an attempt to force the Commonwealth into making a better plea offer. The trial court found that the conduct was so outrageous that a fair trial could not take place with the defendant being represented by the current attorney. The court therefore removed the attorney from the case over defense objection. The defendant retained new counsel and proceeded with a jury trial.

In 2021, a jury convicted the defendant of two counts of attempted homicide, 13 counts of aggravated assault, seven counts of recklessly endangering another person, two counts of possessing an instrument of crime, two counts of criminal mischief, one count of terroristic threats, and one count of institutional vandalism. In early 2022, the trial court sentenced him to 27.5 to 57 years of incarceration.

The Superior Court Appeal

The defendant filed an appeal raising only one issue: he challenged the disqualification of his original private counsel. The Commonwealth argued that the standard of review is an abuse of discretion standard. An abuse of discretion standard is a difficult standard to meet that gives great deference to the trial court. Only when the law is misapplied or the result is unreasonable can a defendant win with this level of review. The Superior Court determined their review to be plenary, which means they can review the question of law without giving deference to the trial court and make their own conclusion.

The Superior Court began its analysis by reiterating that while the appeal necessarily focuses on the defense attorney’s actions, it is the defendant’s constitutional right to counsel that is at stake. It is unquestioned that a criminal defendant has an absolute right to counsel under the Sixth Amendment of the Constitution of the United States and Article I, Section 9 of the Pennsylvania Constitution. Furthermore, a defendant has a constitutional right to secure counsel of his choice. If the trial court violates the defendant's right to proceed with an attorney of his choosing, he is entitled to a new trial because prejudice is presumed.

At the same time, the trial courts have the power to disqualify a defendant’s attorney. A court may do so only when it is absolutely essential. In determining when such extreme action may be necessary, the courts have used a two-step approach: a court must find that (1) there is no other remedy available for the attorney’s violations, and (2) there is no other way to ensure the Commonwealth's right to a fair trial.

Here, the Superior Court disagreed with the trial court on both counts. First, the Superior Court examined the defense attorney’s conduct. It concluded that the record supported the trial court's factual findings, and the defendant did not challenge those findings. The attorney arguably violated the Pennsylvania Rule of Professional Conduct (“Pa.R.P.C.”) rule 3.6 by making public statements that had a substantial likelihood of causing prejudice to the proceeding. However, a trial court cannot disqualify an attorney solely for a rule violation, and it also may not do so merely to punish the attorney for the violation.

The Superior Court found two errors with the trials court’s ruling. First, the court found that the trial court’s focus on the defense attorney’s past behavior indicated that the disqualification was punitive. Second, the court noted that the trial court focused on the outrageousness of the attorney’s conduct, not on whether it would continue and, in a way, prejudice the Commonwealth at trial. The Superior Court cited testimony showing that there were three pre-trial motions before the one to disqualify the attorney. In those three motions, there was a mutual agreement between the Commonwealth and the defense attorney to stop making public statements and that the body camera footage or officer disciplinary history was irrelevant to trial unless the Commonwealth brought it up themselves. Therefore, the Superior Court concluded there was a remedy to the attorney’s conduct and that the attorney had agreed not to violate any other rules.

Finally, the Superior Court looked at whether or not the prior conduct was enough to taint the jury pool and deny the Commonwealth a fair trial. The court concluded that two local media broadcasts were not pervasive enough to justify a presumption that the jury could not fulfill its duties fairly. The Superior Court also cited testimony from jury selection to emphasize the point. Jury selection showed that during the entire jury voir dire, only one potential juror had previous knowledge of the events, and that knowledge was vague at best.

Therefore, the Commonwealth was able to receive a fair trial, and the violation of the attorney’s actions was able to be remedied. The Superior Court vacated the defendant’s judgment of sentence and remanded for a new trial. This is an important case as it shows that courts should not be quick to interfere with the defendant’s decision of counsel and may do so only when absolutely necessary.

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Zak Goldstein 4/12/23 Zak Goldstein 4/12/23

PA Superior Court: Trial Court May Grant New Trial in Criminal Case Sua Sponte

The Superior Court has decided the case of Commonwealth v. Becher, recognizing that a trial court may grant a new trial to a defendant on its own even after a conviction. The Superior Court, however, reversed the grant of the new trial in this case because the error relied upon by the trial court in granting the new trial was not significant enough to justify such an extreme measure. This case is helpful for the defense in that it reaffirms the ability of the trial judge to grant a new trial when an egregious error has occurred, but it was not good for this defendant as this particular defendant had his grant of a new trial reversed.

The Facts of Commonwealth v. Becher

The defendant, three of his cousins, and a friend went to a strip club. There were members of a motorcycle club at the strip club who started an altercation with an intoxicated person and beat him up outside of the club. One of the defendant’s cousins taunted the club members for beating up an intoxicated person. The cousin and a club member started to fight but were quickly separated. Another cousin entered the club to grab the defendant. He was unaware of any altercations. At that time, the two remaining cousins reinitiated the fight. The defendant emerged from the club, observed the physical altercation, drew his gun, and struck one of the club members with it. The defendant then dropped the gun, and a melee ensued. During the struggle, the defendant was shot, recovered the gun himself, and shot two club members.

The Issue at Trial

At trial, three motorcycle club members testified that during the fight, the defendant’s cousin kept yelling that she was going to get her cousin and have him “smoke” them. After the Commonwealth had witnesses testify to this threat, the defendant's lawyer objected on hearsay grounds to the admission of the cousin’s threats. The trial court overruled the objection. The Commonwealth referred to the cousin's threats in closing arguments, and the trial court gave the jury a cautionary instruction. The trial court instructed the jury not to use the statements against the defendant as proof of his intent.

A jury found the defendant guilty of third-degree murder, finding he did not act in self-defense. The defendant’s lawyer filed a motion for a new trial alleging that the verdict was against the weight of the evidence. At sentencing, the trial court ruled that it would grant the defendant a new trial for a different reason. The trial court found that a new trial was necessary in the interests of justice because the testimony of the cousin’s threats was blatant and inadmissible hearsay. The trial court determined that it should have precluded the threats. Alternatively, if the statements were not hearsay, they were still unfairly prejudicial and should not have been admitted. Therefore, the trial court granted the defendant a new trial sua sponte.

The Appeal

The Commonwealth filed an appeal to the Pennsylvania Superior Court. On appeal, the Commonwealth argued that the trial court abused its discretion in sua sponte granting a new trial to the defendant because none of its reasons supported taking such an extreme measure.

The Superior Court agreed. The Court recognized that a trial court may grant a new trial sua sponte in the interests of justice. The ability to do so, however, is limited. Generally, a court may only do so when there has been some kind of egregious error in the proceedings. Additionally, the standard that must be met depends now whether a party to the proceedings has recognized and preserved the error. When a party recognizes an error but fails to preserve that error, there must be an exceedingly clear error of a constitutional or structural nature. The result must be a manifest injustice that amounts to severely depriving a party's liberty interest. Because the defendant’s attorney was aware of and objected to the threats at some point during the trial, the Superior Court reviewed the grant of a new trial under this higher standard. The lawyer had objected but not moved for a mistrial.

First, the Superior Court rejected the trial court’s conclusion that the threat was blatant, inadmissible hearsay. Instead, the threat had been admitted for a proper purpose. The threat was not used to prove the defendant’s state of mind but instead to tell the whole story of events. Further, a threat to do something is not necessarily a statement offered for the truth of the matter asserted. Instead, it is more of a present sense impression in that it is a statement about what someone intends to do. In this case, the witness intended to have the defendant commit the shooting.

The Superior Court also rejected the trial court’s conclusion that the statement was more prejudicial than probative. The Court found both that the statement was relevant, that it was not unfairly prejudicial, and that the trial court prevented any unfair prejudice by giving the jury a cautionary instruction that it should not hold the statement against the defendant. Therefore, the Court concluded that trial court erred in granting a new trial. The errors cited by the trial court were not actually errors, and even if they were, they were not big enough to justify a sua sponte grant of a new trial.

Therefore, the Superior Court concluded that the trial court abused its discretion in granting the defendant a new trial sua sponte. The Court reversed the trial court's order and remanded it to hear the motion for a new trial based on the weight of the evidence argument. The case obviously does not help this particular defendant, but it does reaffirm that where an error is egregious enough, a court retains the inherent authority to order a new trial in order to fix that error.