Philadelphia Criminal Defense Blog

Zak Goldstein 5/25/24 Zak Goldstein 5/25/24

Attorney Goldstein Obtains Reduced Sentence for Client Following Successful Appeal in Drug Case

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

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, recently obtained a significantly reduced sentence for a client following a successful Superior Court appeal in a drug case. In the case of Commonwealth v. M.F., the defendant went to trial with a different attorney in Blair County on charges of drug delivery resulting in death, possession with the intent to deliver, recklessly endangering another person, criminal use of a communications facility, and possessing a controlled substance. The jury acquitted the defendant of drug delivery resulting in death, but it found him guilty of PWID and related charges. The trial judge then sentenced him to 17.5 - 35 years in prison for the conviction on PWID and the other charges even though he was acquitted of homicide.

The client retained Attorney Goldstein, and Attorney Goldstein appealed to the Pennsylvania Superior Court. The Superior Court vacated the sentence, finding that it was excessive because it far exceeded the sentencing guidelines in effect at the time of the offense. The Court remanded the case back to the trial judge for a new sentencing hearing. Attorney Goldstein continued to represent M.F. for sentencing. By the time of sentencing, M.F. had been in custody for about six years, so Attorney Goldstein requested a total sentence of roughly 6 - 12 years’ incarceration so that M.F. would be eligible for parole. The trial court agreed with the defense’s recommendation and re-sentenced M.F. as requested by the defense. Accordingly, this successful appeal resulted in a sentence reduction from 17.5 - 35 years to 6 - 12 years, and M.F. will now be eligible for parole.

Facing criminal charges or appealing a criminal case in Pennsylvania?

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

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 and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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 5/25/24 Zak Goldstein 5/25/24

PA Superior Court: Statements Made to Constables May Be Suppressed for Lack of Miranda Warnings

The Pennsylvania Superior Court has decided the case of Commonwealth v. Seeney, holding that statements made to constables during a custodial interrogation may not be admissible in court unless the constable first gave Miranda warnings.

The Facts of Seeney

In Seeney, the defendant was charged with attempting to possess a firearm as a prohibited person in violation of § 6105 and two counts of making a false statement in connection with the purchase of a firearm in violation of 18 Pa.C.S. § 6111(g)(4). The police arrested the defendant, and he was held in custody at the Bucks County Correctional Center.

The defendant was scheduled for his preliminary hearing in 2022. In the suburban counties, preliminary hearings take place at the office of a Magisterial District Justice. Sheriffs transport prisoners to preliminary hearings in Philadelphia and for other hearings in the Court of Common Pleas in the counties, but magistrates use constables for prisoner transportation. In this case, a constable transported the defendant to the magistrate’s office for his preliminary hearing. The constable had no real involvement in the case and did not particularly care about it, but in making conversation with the defendant, he asked the defendant what he was charged with. The defendant then told the constable that he had tried to buy a gun despite being prohibited from doing so.

The constable did not give the defendant Miranda warnings during this conversation and likely would not have told anyone what the defendant said. Unfortunately for the defendant, a police detective happened to overhear it. The detective then called the constable the next day and asked the constable to give a formal statement about what the defendant said to him, and the constable would have then been a witness for the Commonwealth at trial.

The Motion to Suppress

Prior to trial, the defendant moved to suppress the incriminating statement made to the constable because the constable never gave him Miranda warnings. The trial court granted the motion to suppress, and the Commonwealth appealed.

The Superior Court Appeal

On appeal, the Commonwealth argued that the constable was not required to provide Miranda warnings because 1) he did not actually interrogate the defendant and 2) he was not a law enforcement officer like a police officer or detective. The Superior Court rejected both arguments. First, it found that the constable’s questioning was clearly an interrogation. By asking the defendant about his court appearance, the constable asked questions which were reasonably likely to elicit an incriminating response. The constable’s purpose in asking the questions - that he was just making conversation - did not matter. Instead, the test is whether the questions themselves were likely to elicit an incriminating response. Second, the court found that it was irrelevant that the constable was not actually a police officer or sworn law enforcement officer. Constables provide transportation to court for the magistrate. In order to do so, they physically restrict a prisoner’s movements both by locking them in their transport vehicle and in holding cells, and by guarding them while armed with a firearm. This creates a custodial setting no different than being transported by a sworn police officer, and the constables do this on behalf of the government. Accordingly, the fact that the constable was not actually a police officer was irrelevant - it was still a custodial interrogation conducted by a state actor.

When do the police have to give Miranda warnings?

The police only have to give a defendant Miranda warnings when they are going to conduct a custodial interrogation. If the police fail to give Miranda warnings, then any statement obtained may not be used against the defendant. The failure to give Miranda warnings does not automatically result in the dismissal of a case. Instead, it would only result in the suppression of a statement if the police took a statement. Accordingly, if the police do not want to take a statement or do not care if the resulting statement is going to be admissible, then they do not have to give Miranda warnings.

Here, the defendant was obviously in custody - he was being held at the Bucks jail and transported by an armed constable, and the constable asked him questions which were likely to result in incriminating admissions. The constable worked on behalf of the government, so this amounted to a custodial interrogation which required Miranda warnings. The Superior Court therefore upheld the trial court’s order granting the motion to suppress the confession.

The ruling here seems pretty obvious, so it is somewhat surprising the prosecution appealed. The case provides a good illustration of when Miranda warnings are required, however.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Zak Goldstein 5/22/24 Zak Goldstein 5/22/24

Attorney Goldstein Argues Before PA Supreme Court in Harrisburg

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire recently argued before the Pennsylvania Supreme Court in Harrisburg, PA. In the case of Commonwealth v. Muhammad, the Court granted review on the following question:

Was the evidence insufficient to support Petitioner’s conviction for firearms not to be carried without a license, 18 Pa.C.S. § 6106, where the jury made a specific factual finding that Petitioner did not possess a firearm in response to a special interrogatory to which all parties and the trial court had agreed?

In Muhammad, the police arrested the defendant after finding a gun in the center console of a car to which multiple people had access. Prosecutors charged him with possession of a firearm by a prohibited person in violation of 18 Pa.C.S. § 6105 and carrying a concealed firearm in violation of 18 Pa.C.S. § 6106. The case law holds that a felon in possession charge under § 6105 must be bifurcated from other charges and heard after the other charges have been decided. § 6105 must be bifurcated because in order to prove a violation of § 6105, the Commonwealth must introduce evidence of the defendant’s criminal record. This evidence obviously makes it very difficult for the jury to remain impartial. Once the jurors have heard that the defendant has a felony conviction, they are much more likely to convict. Therefore, trial courts throughout the state will usually conduct the trial without telling the jury about the § 6105 charge first, and then once the jury has reached a verdict on the other charges, hold a mini-trial just on the § 6105 charge at which the Commonwealth will tell the jury about the defendant’s criminal record and then ask the jury to make a decision on that case. This procedure avoids the issue of the jury becoming prejudiced against the defendant after learning that they have a record.

In this case, however, the trial court decided to use a placeholder interrogatory on the possession of a firearm. The parties agreed that instead of completely bifurcating the offense, the jury would receive an instruction on the definition of actual and constructive possession and then be asked whether the defendant possessed a firearm. If the jury answered yes, then the judge would find the defendant guilty of § 6105. If the jury answered no, then the judge would find the defendant not guilty. All parties agreed to this unusual procedure. The judge accurately instructed the jury on the definition of possession, and the jury answered “no” to an interrogatory on whether the defendant possessed and controlled a firearm. The case took a bizarre turn, however, when the jury then convicted the defendant of carrying a concealed firearm without a license.

Carrying a firearm without a license in violation of § 6106 requires possessing the firearm – so the interrogatory answer and the verdict are impossible to reconcile. If the defendant did not possess a firearm, then he could not have carried one for § 6106, and the evidence was therefore insufficient. The trial court and Superior Court, however, both found that the inconsistency was acceptable because Pennsylvania law allows for inconsistent verdicts in most situations.

Attorney Goldstein sought review in the state Supreme Court because this situation is different. The jury’s response to the interrogatory was not a verdict. Instead, it was a specific factual finding – that the defendant did not possess a gun – which negated an element of the offense for which he was convicted. Therefore, the lower courts should have entered a judgment of acquittal because the evidence was insufficient.

The Supreme Court granted review on whether inconsistent interrogatories should be treated differently from inconsistent verdicts, and Attorney Goldstein argued the case in Harrisburg last week. The Court will now likely make a decision within the next few months, and this could be a particularly important decision as trial courts have increasingly relied on interrogatories in the last few years since the United States Supreme Court found in Alleyne and Apprendi that any elements which could increase a maximum penalty or impose a mandatory minimum must be submitted to the jury.

The audio from the argument is available through the Court on Youtube here: https://www.youtube.com/live/NLbu2tIk_S4?si=gpNc7d5o1MYhQnsL&t=15566

Video of the 5/14/24 argument is available here: https://pcntv.com/pennsylvania-politics-and-policy/pa-courts/pa-supreme-court/

Facing criminal charges or appealing a criminal case in Pennsylvania?

Attorney Goldstein in the Pennsylvania Supreme Court

Zak Goldstein 5/14/24 Zak Goldstein 5/14/24

PA Supreme Court: Commonwealth May Not Use Hearsay Alone to Prove Identity of Perpetrator at Preliminary Hearing

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Harris, holding that the Commonwealth may not meet its burden of proving that the defendant committed the crimes charged at a preliminary hearing through the use of hearsay alone. The issue in this case was whether Pennsylvania Rule of Criminal Procedure 542(E) permits the use of hearsay alone to establish a defendant’s identity at a preliminary hearing. The Supreme Court and Superior Court have both struggled with how much hearsay is allowed at a preliminary hearing. Under Rule 542, it is clear that the Commonwealth may use some hearsay to meet its burden at a preliminary hearing. But ultimately, as the Supreme Court held in Commonwealth v. McClelland, due process protections prohibit the Commonwealth from proving a prima facie case solely through hearsay, and following this decision, the Commonwealth may not prove the defendant’s identity as the perpetrator through the use of hearsay alone. The Commonwealth may prove elements such as ownership and non-permission for theft and property offenses using hearsay, and it may often introduce the observations of other police officers who were in constant radio contact with the testifying officer as well as lab reports, but Harris re-affirms the principle that preliminary hearings are an important part of the process at which the Commonwealth must introduce actual evidence to justify the filing of charges against a defendant and the potential detention of a defendant who cannot make or is not eligible for bail.

The Issue in Harris

Pa.R.Crim.P. 542 governs preliminary hearings in Pennsylvania, and it does provide for a number of situations in which the Commonwealth may introduce hearsay at a preliminary hearing. Specifically, Pa.R.Crim.P. 542(E) allows “hearsay to establish any element of an offense.” At the same time, Supreme Court case law like Commonwealth v. McClelland preclude the Commonwealth from proving an entire case using hearsay alone. This case, however, focused on the issue of whether the Commonwealth may meet its burden by proving that a crime occurred through non-hearsay and then proving the defendant’s identity as the perpetrator of the crime using hearsay.

The Facts of Harris

A Philadelphia Police Officer responded to a report of a shooting and found that complainant had been shot in the wrist and thigh. At the hospital, the complainant in a state of distress, identified the defendant and his brother as the shooters. The complainant made statements and identified the brothers from photographs. The Commonwealth then charged Harris with attempted murder, aggravated assault, and other related charges.

The complainant did not appear for multiple listings of the preliminary hearing. The Commonwealth proceeded with only the testimony of the responding officer as well as that of a detective. The detective also confirmed the complainant’s hearsay identification. The defendant objected to the hearsay, but the Municipal Court judge held the case for court.

The defendant filed a motion to quash, arguing that the Commonwealth’s case against him was based solely on hearsay and thus insufficient to establish his identity as the perpetrator. The Common Pleas Judge held a hearing on the motion to quash. She quashed the attempted murder charge but upheld the remaining charges. At the time. the Superior Court had ruled in Ricker and McClelland that the Commonwealth could establish a prima facie case at a preliminary hearing using hearsay alone. While the case was pending, however, the Pennsylvania Supreme Court overruled those cases in Commonwealth v. McClelland. Following the Supreme Court's decision in McClelland, the defendant filed a motion to reconsider. The trial judge granted the motion and dismissed all of the charges against him because the Commonwealth relied entirely on hearsay to prove his identity as the shooter.

The Commonwealth appealed, and the Superior Court affirmed the trial court’s decision. The Pennsylvania Superior Court emphasized that all material elements of a crime, including the defendant's identity, must be proven through by non-hearsay evidence to satisfy the requirements of due process which apply to a preliminary hearing.

The Supreme Court’s Decision

The Commonwealth appealed again, seeking review in the Pennsylvania Supreme Court. The Pennsylvania Supreme Court granted allocatur, heard the appeal, and ultimately affirmed. The Court ruled that Rule 542(E) does not permit the use of hearsay alone to establish a defendant’s identity. The Court emphasized the distinction between the elements of a crime and the identification of the defendant, holding that the latter cannot be proven solely through hearsay. Therefore, the Commonwealth must introduce some form of non-hearsay or admissible hearsay evidence to establish a defendant’s identity at a preliminary hearing. The Court also suggested in a footnote that the Commonwealth may be able to instead use an indicting grand jury in cases involving witness intimidation, although whether the Commonwealth may rely entirely on hearsay at an indicting grand jury is potentially an open question.

The Takeaway

Ultimately, Rule 542 is a mess. It states that the Commonwealth may use hearsay to establish any element of an offense at a preliminary hearing. At the same time, the Supreme Court’s precedent limits the Commonwealth’s ability to do so as the Supreme Court has now held that a defendant may not be held for court based on hearsay alone or held for court based on an identification that is entirely made up of hearsay. Certain types of hearsay are clearly admissible. For example, ownership and non-permission testimony, lab reports, and the testimony of other narcotics officers during a narcotics surveillance generally comes in. But the Superior Court’s recent case holding that the out-of-court statement of a confidential informant that the defendant sold the drugs in question is admissible is probably effectively overruled by this case. In an ideal world, the Court would draft a clearer rule that would continue to protect a defendant’s due process rights. For now, the situation will likely remain fuzzy, and the amount of hearsay allowed at a preliminary hearing will depend heavily on the judge hearing the case. The appellate courts have held that a preliminary hearing based entirely on hearsay is not acceptable, but they have not really clarified how much hearsay is too much.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Criminal Defense Lawyer Zak T. Goldstein, Esquire