Philadelphia Criminal Defense Blog

Zak Goldstein 6/10/24 Zak Goldstein 6/10/24

PA Superior Court: Police Justified in Searching Backpack Defendant Abandoned After Fleeing Into Someone Else’s Home

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Coles, reversing the trial court’s grant of a motion to suppress a gun. The Court found that the trial court should have found that police properly searched the defendant’s bag after the defendant fled from a lawful police stop, ran into someone else’s house without permission, and abandoned the bag containing the illegal gun.

The Facts of Coles

Two Philadelphia police officers were on patrol in September 2020. They observed the defendant and other individuals smoking what appeared to be marijuana on a street corner. The officers approached the defendant to investigate. The defendant immediately fled into a nearby house. When police saw her, she was carrying a black North Face backpack .

The police followed her into the house. Once they got in the house, they found the backpack abandoned in the kitchen. The officers searched it and found a gun in the bag. They arrested the defendant and confirmed that she did not have a license to carry the firearm in the bag.

The Motion to Suppress

Prosecutors charged the defendant with carrying a concealed firearm without a license in violation of 18 Pa.C.S. § 6106 as well as carrying a firearm on the streets of Philadelphia in violation of 18 Pa.C.S. § 6108. She filed a motion to suppress the gun, arguing that the police did not have reasonable suspicion or probable cause to search the backpack. The trial court agreed and granted the motion to suppress. The Commonwealth appealed.

The Superior Court Appeal

The Commonwealth appealed the trial court's decision granting the motion to suppress to the Pennsylvania Superior Court, and the Superior Court reversed.

The Court found that the defendant had voluntarily abandoned the backpack when she fled into a property she had no permission to enter. According to Pennsylvania law, an individual who abandons property cannot later contest its search and seizure. The court noted that abandonment is a matter of intent, inferred from actions and circumstances. Here, the defendant’s act of leaving the backpack behind while fleeing from police indicated her intent to abandon it, thereby forfeiting any reasonable expectation of privacy. The Court emphasized that the police did not need reasonable suspicion or probable cause to search an abandoned item.

Notably, this was not a situation involving “forced abandonment.” If someone flees from the police or abandons property as a direct result of illegal police conduct, then it may still be possible to successfully move to suppress the abandoned property. For example, if the police attempt to stop someone without reasonable suspicion or probable cause and the person runs and tosses a gun, it may still be possible to suppress the gun in state court because the gun was only abandoned as a result of the illegal stop. But here, there was no issue of forced abandonment because both the trial court and the Superior Court believed that the police had reasonable suspicion to approach the defendant to investigate the illegal marijuana use. The police officers’s suspicions regarding the marijuana and the defendant’s immediate flight and abandonment of the backpack provided them with the necessary level of suspicion to conduct the search. It is also important to note that although the doctrine of forced abandonment applies in Pennsylvania state court, it generally does not apply in federal court. As a general rule, running away and discarding contraband will not help your case, but in some cases in Pennsylvania, it may still be possible to argue that the initial unlawful police conduct requires suppression of the evidence. Unfortunately, this case does not appear to be one of them.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Goldstein Mehta LLC 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 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 6/8/24 Zak Goldstein 6/8/24

PA Supreme Court: PCRA Court Should Hold Hearing to See if Appointing New Counsel Warranted When Defendant Raises Claims of PCRA Counsel’s Ineffectiveness on Appeal

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Greer, holding that the lower courts erred in requiring an attorney to continue representing the defendant/PCRA petitioner on appeal without first holding a hearing to determine whether the petitioner should have received a new attorney or represented himself for the appeal. In Greer, the defendant submitted pro se filings while the denial of his PCRA petition was on appeal alleging that PCRA counsel, who was still representing him for the appeal, had provided the ineffective assistance of counsel in the PCRA proceedings by failing to raise meritorious claims. The Supreme Court held that before requiring counsel to file a merits brief on the issues he did raise, the lower courts should have held a hearing to determine whether the appointment of new counsel was necessary or alternatively, whether the defendant should be required or allowed to represent himself.

The Facts of Greer

A jury convicted Greer of first-degree murder and carrying a firearm without a license. He appealed to the Superior Court, and the Superior Court affirmed on direct appeal. The Pennsylvania Supreme Court denied a petition for allowance of appeal.

Following the conclusion of his direct appeals, Greer filed a timely pro se PCRA petition. The court appointed counsel for him, and his court-appointed counsel eventually filed an amended PCRA petition. The PCRA court denied the petition, and counsel filed an appeal on Greer’s behalf.

While the appeal was pending, Greer submitted a request for remand to raise claims that his PCRA counsel provided the ineffective assistance of counsel in failing to raise certain meritorious claims. The Superior Court remanded the case to the PCRA court to address these new claims, but the Commonwealth filed for reconsideration, arguing that the Superior Court should first address the claims which had already been developed by PCRA counsel. The Superior Court then directed counsel to file a merits brief on those issues. The defendant appealed, and the Pennsylvania Supreme Court accepted the appeal to decide whether the PCRA court should hold a hearing on who should represent the defendant for appeal or whether the Superior Court properly decided that the claims which had already been developed should be resolved first.

The Supreme Court’s Ruling

The Supreme Court reversed and remanded the case back to the PCRA court for a hearing on whether the defendant should receive new counsel, represent himself, or continue to be represented by PCRA counsel. The Court ruled that when an appellate court identifies potential ineffectiveness claims against current PCRA counsel, the proper procedure is to remand the case to the PCRA court to determine whether they have potential merit and who should represent the defendant. This remand should include an on-the-record colloquy with the petitioner about their right to counsel, the prohibition of hybrid representation (where the petitioner would partially represent themselves while also having counsel), and how they wish to proceed.

The Supreme Court emphasized that the Superior Court should have remanded the case for a hearing to clarify Greer’s representation status before directing his PCRA counsel to file a merits brief on any of the issues. By forcing PCRA counsel to file a merits brief on the developed issues, the Superior Court inadvertently allowed hybrid representation, which is prohibited and undermines the appellate process. Therefore, the Court remanded for the PCRA court to determine who should represent the petitioner or alternatively, whether he should be allowed to proceed pro se.

Ultimately, this case resolves a complicated procedural issue that will not arise in every case, but it does show that the appellate courts have become much better about providing protections to ensure that PCRA petitioners receive the effective assistance of counsel. Previously, there was no meaningful way for a petitioner to challenge the ineffective assistance of PCRA counsel in state court. These claims would have to be raised in federal court by filing a federal habeas petition pursuant to 28 U.S.C. § 2254. Now, however, a PCRA petitioner may retain new counsel or ask for new court appointed counsel and raise those issues on appeal of the denial of a PCRA petition if they can identify legitimate issues of PCRA counsel’s ineffectiveness.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Goldstein Mehta LLC Criminal Defense Lawyers

Zak Goldstein 6/4/24 Zak Goldstein 6/4/24

PA Superior Court: Unproven Hearsay Allegations Did Not Justify Denying Expungement Petition in Domestic Violence Case

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Adams, holding that the trial court erred in denying Adams’s expungement petition because it relied entirely on unproven hearsay allegations in denying the petition. This case will hopefully sharply limit the Commonwealth’s ability to object to the expungement of a dismissed case based solely on untested hearsay allegations that the case was serious or involved domestic claims.

Adams's legal troubles began with a 2007 conviction for violating a Protection From Abuse (PFA) order and harassment against his estranged wife. Following this conviction, Adams faced additional allegations in 2008, where his wife accused him of contacting or threatening her multiple times in violation of the PFA order. This resulted in five arrests and charges. Those charges included additional PFA violations, as well as charges of harassment and terroristic threats. He was arrested on five separate dockets, but his wife did not appear in court for any of them, and the Commonwealth ultimately withdrew all charges over ten years ago.

Adams’s case thus involved two sets of charges. In 2007, he was charged with violating a PFA order and harassment. He pleaded no contest, meaning he did not admit responsibility but did not contest the evidence, and was sentenced to six months of probation. In 2008, his estranged wife alleged he violated the PFA order five more times, leading to additional charges. The specific accusations included threats of violence, but these charges were withdrawn by the prosecution due to the complainant's failure to appear for court as required.

The Expungement Petition

In 2021, Adams filed to expunge the records of his 2008 arrests. Despite the charges being withdrawn, the trial court denied his petition, citing the nature of the allegations and the hearsay evidence in the records. Adams appealed this decision to the Pennsylvania Superior Court.

The Superior Court’s Ruling

The Superior Court of Pennsylvania reviewed the trial court’s decision denying the expungement petition under the balancing test articulated in Commonwealth v. Wexler. Wexler requires weighing the petitioner’s right to be free from the harm of an arrest record against the Commonwealth's interest in retaining such records.

The Wexler Factors

The Superior Court analyzed each of the factors and ultimately concluded that a balance of all of the factors favored the petitioner.

Strength of the Commonwealth's Case:
- Contrary to the trial court, the Superior Court found that the Commonwealth's case against Adams was weak. The evidence relied solely on hearsay allegations without any formal presentation of a prima facie case. This was particularly true because Adams had not even had a preliminary hearing. In Philadelphia, summary and misdemeanor charges do not get scheduled for a preliminary hearing but instead are scheduled immediately for trial before a Municipal Court judge. Thus, there was not even sworn testimony for the trial court to rely upon. The Commonwealth instead introduced only the arrest reports (PARS reports). The allegations in the Preliminary Arrest Report Summaries (PARS) were not sworn statements and were not subject to cross-examination, rendering them insufficient even to sustain a conviction in a criminal trial. The Commonwealth also did not call any witnesses at the hearing on the expungement petition, meaning the Commonwealth relied entirely on untested hearsay.
Reasons for Retaining Records:
- The Commonwealth argued that the nature of the repeated domestic violence allegations justified retaining the records. However, the court noted that without substantiated evidence or further criminal activity by Adams since 2008, the interest in preserving these records was not compelling. The records' hearsay nature further undermined the validity of this reason.
Petitioner's Age, Criminal Record, and Employment History:
- At the time of the petition, Adams was 65 years old and had remained arrest-free since the 2008 allegations. The significant time elapsed since the charges, along with Adams's clean record for over a decade, weighed heavily in favor of expungement. The court recognized that Adams's age and lengthy period without criminal incidents demonstrated rehabilitation and a reduced risk of reoffending, making retaining the records less important.
Length of Time Between Arrest and Petition to Expunge:
- Thirteen years had passed since the withdrawal of the charges and Adams’s petition for expungement. This considerable gap, far exceeding the statute of limitations for the charges, supported the petition. The court noted that unlike in other cases where a shorter period might be insufficient, the extended time frame here was a strong factor favoring expungement. The court implied that a petition filed within the statute of limitations should be scrutinized more carefully.
Adverse Consequences to the Petitioner:
- Although Adams did not present evidence of economic harm, the court recognized potential reputational damage. Even sealed records can sometimes be accessed inappropriately, causing harm to an individual's reputation. The court also noted that having multiple arrest records, as opposed to a single incident, could lead to more significant adverse consequences for Adams in the eyes of potential employers or the public. In this case, Adams records had been sealed, but the sealing of records is not as good as a full expungement.

The Pennsylvania Superior Court’s Ruling

The Superior Court concluded that the trial court abused its discretion in denying Adams's expungement petition. The court emphasized the lack of credible evidence against Adams given that the evidence consisted entirely of hearsay, the significant time elapsed since the charges, and the undue harm maintaining the records could cause to his reputation. The decision underscores the importance of the Wexler balancing test in ensuring that expungement petitions are evaluated fairly, particularly when charges are withdrawn and the evidence against the petitioner is weak or nonexistent. It also cautions trial courts that they generally must require real evidence at a hearing on an expungement petition. Hearsay allegations may be sufficient when the Commonwealth can prove some explanation for why witnesses cannot appear such as genuine evidence of witness intimidation, but in most cases, they will no longer be enough.

This could dramatically change the practice in Philadelphia. In Philadelphia, prosecutors rarely call actual witnesses to testify at expungement hearings. Instead, they simply read the arrest report into the record even though the arrest report is hearsay. Following this case, the prosecution should be held to a higher standard and expected to produce competent evidence when they decide to oppose an expungement petition. This is an excellent decision by the court and recognizes that people should not have to live with criminal records from dismissed cases in which there was no evidence.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Criminal Lawyer Zak Goldstein Supreme Court

If you are facing criminal charges or under investigation by the police, we can help. We can also help you evaluate whether you may be able to file an expungement petition. In many cases, non-profits will handle expungements for free. But if the Commonwealth is objecting to your petition or you wish to expedite the process, we may be able to help move things along more quickly and give you a better chance of success. 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 5/27/24 Zak Goldstein 5/27/24

PA Superior Court: Tender Years Exception Does Not Necessarily Apply to Hearsay-Within-Hearsay

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

The Pennsylvania Superior Court has decided the case of Commonwealth v. Copenahver, holding that the trial court improperly admitted video statements given by the complainants in this case because the video statements contained hearsay-within-hearsay. The court nonetheless affirmed the defendant’s conviction because the evidence was overwhelming, and the court believed he would have been convicted even in the absence of the inadmissible portions of the statements.

The Facts of Copenhaver

In Copenhaver, the defendant was charged with sexually assaulting his daughters, K.G. and C.C. The Commonwealth charged him with rape, involuntary deviate sexual intercourse, production of child pornography, and related charges. Copenhaver went to trial, and the prosecution introduced both the in-court testimony of the complainants as well as videotaped statements they had given at the York County Child Advocacy Center (CAC). The court admitted the CAC statements under the “tender years” exception to the hearsay rule. The Commonwealth also introduced evidence that the defendant had threatened to commit suicide as well as admitted to taking and deleting nude photos of the complainants. The jury convicted the defendant, and he received a lengthy state prison sentence. He appealed.

The Superior Court Appeal

The defendant had court-appointed counsel, and in his initial appeal, his court-appointed attorney submitted an “Anders brief.” An Anders brief is a letter to the Superior Court informing the court that the attorney believes the defendant has no legitimate issues for appeal and the appeal should be dismissed. In order to comply with the rules, the attorney must identify any potential issues and explain why they would not result in a successful appeal. It is inconceivable that there could have been no legitimate issues for appeal following a jury trial involving two child sex assault complainants, and the Superior Court in fact reviewed the transcripts and found that the court-appointed attorney should have raised at least one claim relating to whether the videotaped statements were properly admitted at trial. Accordingly, the Superior Court rejected the Anders brief and directed the appellate attorney to file a real brief on the admissibility of the videotaped statements.

The lawyer filed a new brief challenging the sufficiency of the evidence and the admissibility of K.G.’s videotaped statement under the tender years exception to the hearsay rule. The sufficiency challenge failed - the complainants both testified that the defendant raped them, and the jury was free to believe that evidence and find him guilty.

The video tape issue, however, required more extensive analysis as it had some merit. In most sexual assault prosecutions involving minor complainants, the prosecution team will have the complainant interviewed at some sort of quasi-independent children’s advocacy center. In Philadelphia, this organization is called Philadelphia Children’s Alliance. In many counties, it is called the Children’s Advocacy Center. In Montgomery County, it is called Mission Kids. Instead of having a detective interview the complainant, a social worker with some training in conducting “forensic interviews” will conduct a videotaped interview to try to determine what happened and evaluate the allegations. The questions are supposed to be neutral and non-leading in the hopes of avoiding planting ideas in the complainant’s head, but in practice, the questions are often leading, and the interviewers work very closely with the assigned detective. That detective will typically be standing outside the interview watching through a one-way mirror.

What is the tender years exception to the hearsay rule?

Pennsylvania and most other jurisdictions have a “tender years” exception to the hearsay rule. Section 5985.1 of the Judicial Code, referred to as the “tender years” exception to the hearsay rule, provides as follows:

§ 5985.1. Admissibility of certain statements
1. General rule.
(1) An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses enumerated in paragraph (2) [including, inter alia, 18 Pa.C.S.A. § 6312(b)], not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if:
(i) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and
(ii) the child either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness.
42 Pa.C.S.A. § 5985.1(a).

In 2021, the legislature raised the age from 12 to 16. The old rule with the younger age was still in effect at the time of this case.

Thus, the rule allows for hearsay statements to be admissible into evidence in cases involving rape charges and other similar offenses so long as the complainant either testifies or is unavailable as a witness. In a civil case, unavailability may include a finding that the child will have trouble testifying due to feeling emotional distress. In a criminal case, however, the complainant generally must testify because these statements have been deemed to be testimonial for confrontation clause purposes. There are three main ways for the defense to challenge the admissibility of the statements: First, the defense could argue that the statement is not relevance or reliable. Second, the defense can generally exclude the statement if the complainant does not testify. Third, the defense could argue that there is some other evidence in the statement which is not admissible such as hearsay-within-hearsay or a prior bad act under Rule 404(b).

In this case, one of the complainants gave a statement in which she said that the other complainant disclosed some of the abuse to her. Thus, the initial complainant’s statement was admissible under the tender years exception, but the statement inside that statement from the other complainant was hearsay. That portion of the statement should not have been admitted, but the trial court admitted all of it. The statement was not admissible because the trial court made no finding that the statement was actually reliable. Otherwise, it may have been admissible under the tender years exception, as well. Thus, the trial court erred in simply admitting the entirety of the statements without conducting a reliability assessment.

Nonetheless, the Superior Court affirmed. It found that the evidence was overwhelming and the defendant would have been convicted anyway. The statements were basically cumulative of what the complainants said in court and in their own videotaped statements. Accordingly, although the Superior Court made the court-appointed lawyer do a lot of extra result by rejecting the Anders brief and requiring briefing of the issue, the Superior Court ultimately ruled against the defendant, anyway. The case, however, highlights some of the ways that the defense may challenge the admission of these videotaped PCA or CAC statements.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire