PA Supreme Court: If Lead Investigator Has Probable Cause, Nearby Police Officers Acting as Part of Team May Conduct Search

Commonwealth v. Yong 

Philadelphia Criminal Defense Lawyer Zak Goldstein

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Supreme Court has just decided the case of Commonwealth v. Yong, holding that an investigating officer’s knowledge of facts sufficient to establish probable cause may be imputed to a second officer who arrests the suspect when the officers are working as a team. This is true even when the arresting officer has no individual knowledge of the facts giving rise to probable cause.

In Yong, Philadelphia Police Officers conducted a narcotics investigation targeting the 2300 block of North Fairhill Street in Philadelphia. Police Officer Joseph McCook (the "eyes" of the operation) and his partner conducted surveillance on September 21, 22nd, and 23rd of 2011. While conducting the surveillance, they observed Yong make a number of exchanges of United States currency for small objects which they believed to be drug transactions in which Yong was the seller. Based on the alleged drug activity observed during the three-day surveillance, Officer McCook obtained a search warrant for a property that was involved in these transactions. The officers returned to execute the search warrant later in the day on the 23rd. The warrant team included Police Officer Gerald Gibson. Officer Gibson had not been present for any of the surveillance and had no knowledge of Yong or Yong’s alleged involvement in any drug sales.

Relying on the search warrant, police entered the house located at 3202 North Fairhill Street. Officer McCook, who had witnessed the alleged drug sales, was towards the rear of the group. When the officers entered the house, Yong was standing in the living room. Officer Gibson, who had never seen Yong before, grabbed Yong, patted him down, and found a .38 caliber revolver in Yong’s waistband. The search of the property also led to the recovery of drug paraphernalia, including new and unused packaging.  

Possession with the Intent to Deliver and Gun Charges

The Commonwealth charged Yong with Possession with the Intent to Deliver, Criminal Conspiracy, and various gun charges including firearms not to be carried without a license and persons not to possess a firearm. Yong’s defense attorney moved to suppress the firearm, arguing that Officer McCook’s probable cause could not be imputed to Officer Gibson because Officer Gibson was not part of the prior narcotics surveillances. This was important because Pennsylvania appellate courts have long held that even where officers have a search warrant for a home, the officers need specific probable cause or reasonable suspicion to search the occupants of the home unless the occupants are identified or described in the search warrant. Because Officer Gibson did not know anything about Yong and Yong was not identified as a person to be searched by the search warrant, the defense argued that Officer Gibson had violated Yong’s rights by patting him down without reasonable suspicion or probable cause. The defense argument relied on the fact that Officer McCook had not specifically directed Officer Gibson to search or arrest Yong because Pennsylvania courts have also held that an officer who does not have probable cause may conduct a search or make an arrest when specifically directed to do so by an officer who does have probable cause.  

The Criminal Appeal 

The trial court denied the motion to suppress. The trial court found that Officer McCook’s knowledge and probable cause could be imputed to Officer Gibson, and the Pennsylvania Supreme Court ultimately agreed. The Court recognized the bad incentives that the decision could create for police officers in that it encourages officers who are working together to take a chance and conduct a search or make an arrest and hope that one of the other officers will later turn out to have reasonable suspicion or probable cause. The Court attempted to limit this incentive and its holding by limiting the application of the decision to the narrow facts of this case.

The Court held that the officer who does not have reasonable suspicion or probable cause may conduct the search or seizure only where that officer is specifically working as part of the same team and is near the officer who made the original observations. The Court rationalized its holding by suggesting that Yong’s arrest was inevitable. Officer McCook had observed Yong engaged in drug sales, so even if Officer Gibson had not arrested Yong, Officer McCook would have arrested Yong once he got into the house and saw him. This is an extension of the existing inevitable discovery doctrine. However, the Court was clear that it is not sufficient for officers to be part of the same police force or to be independently investigating the same criminal conduct. The officers must actually be working together and nearby, and one of the officers must have the requisite level of suspicion. In that limited situation, an officer does not violate a suspect’s rights by conducting a search or arrest. Although this opinion does create bad incentives for police officers to gamble on a potentially illegal search, it is relatively limited as it probably does not represent a substantial expansion of the inevitable discovery doctrine.

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Philadelphia Criminal Lawyers

Philadelphia Criminal Lawyers

The Philadelphia criminal defense lawyers of Goldstein Mehta LLC will fight for your rights at trial or on appeal. Our attorneys have successfully defended thousands of cases in Philadelphia and the surrounding counties, and we can help with all types of state and federal charges in Pennsylvania and New Jersey.  We offer a free 15-minute criminal defense strategy session. Call 267-225-2545 to speak with a top-rated defense attorney today. 


PA Superior Court: Trial Court May Hear from Variety of Witnesses in Deciding Whether Child Complainant May Testify Via Closed Circuit TV  

Commonwealth v. Tyrrell

The Pennsylvania Superior Court has decided the case of Commonwealth v. Tyrrell, rejecting the defendant’s challenge to his convictions for Rape of a Child and related charges. In this appeal, the Superior Court rejected the defendant’s arguments that 1) the trial court improperly permitted the complainant to testify via closed circuit television and 2) the trial court should have excluded the testimony of the minor complainant because the testimony was tainted.

The Criminal Charges

In Tyrrell, the defendant was charged with rape of a child, rape of a child resulting in serious bodily injury, indecent assault, unlawful contact with a minor, and corruption of minors for molesting S.B., his then 8-year-old daughter. The offenses allegedly occurred on April 2, 2014, and the defendant gave a statement confessing to the crimes on August 24, 2014. The defendant filed a motion to suppress his confession, opposed the Commonwealth’s motion to introduce the testimony of the complainant via closed circuit television, and also challenged the admissibility of the complainant’s testimony by arguing that the testimony had been tainted through the suggestions of others. The trial court rejected all three arguments, and the defendant was convicted. The court sentenced him to 50-100 years of incarceration followed by ten years of probation, and he appealed.

Pennsylvania's Tender Years Act – When May A Child Witness Testify Via Closed Circuit Television?

On appeal, the Superior Court also rejected the arguments. With respect to the closed circuit television issue, the defendant argued that the complainant should have been required to testify in open court in front of the jury. However, the Pennsylvania legislature has enacted a “Tender Years Act” which permits children who are 12 years old or younger to testify via closed circuit television under certain circumstances. When the prosecution moves that a child witness be permitted to testify via closed circuit television, the court must hold a hearing to determine, based on the evidence presented to it, whether requiring the child to testify in an open forum in the presence and full view of the jury and defendant will result in the child victim or child witness suffering serious emotional distress that would substantially impair the child victim or material witness’s ability to reasonably communicate.

The statute further provides: “in making this determination, the court may do all of the following:

1) Observe and question the child victim or child material witness, either inside or outside the courtroom.

2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child victim or child material witness in a medical or therapeutic setting.”

The statute makes it clear that the court must hold a hearing and either hear from the child or from a witness who can testify as to the emotional state of the child. If the court is satisfied that the child cannot testify without suffering from substantial emotional distress which will impair the child’s ability to communicate, then the court may permit the child to testify in a different room. Only the attorneys for the parties, the judge, the court reporter, an advocate for the child, and persons necessary to operate the recording equipment may be present in the room in which the child testifies. The defendant, the jury, the public, and any other court staff may not be present in the room.

Here, the defendant challenged the trial court’s determination that the complainant could testify via closed circuit television. In a pre-trial hearing, the Commonwealth presented the testimony of a licensed professional counselor. The counselor testified that in her expert opinion, she believed it would be traumatic for the complainant to testify in open court in front of her father and others. She believed that it would be traumatic because of how hard it was for the complainant to disclose the sexual assault and because many children still feel loyalty to their parents even after they report having been sexually assaulted.

The Commonwealth also presented the testimony of a caseworker for the county’s Children and Youth Services (called DHS in Philadelphia). The caseworker testified that the complainant suffered because the allegations against the defendant broke up her family. She had been placed in foster care, and she had been diagnosed with anxiety, depression, and PTSD. She had also told the caseworker how scared she was and that she was dreading the court date. The caseworker felt that the complainant was not ready to stand in a public courtroom and testify.

Based on this testimony, the trial court granted the Commonwealth’s motion to permit the child to testify from a different location, and the Superior Court approved of the trial court’s decision. The Superior Court reasoned that there is no specific requirement as to who or what kind of witness must testify in order to make the showing necessary under the Tender Years Act. The Tender Years Act does not require a current counselor, a medical doctor, or even a parent to testify in making the necessary showing. Instead, the plain language of the Act permits the Court to evaluate the child witness for itself and for the Court to hear from any adult witness who has the relevant knowledge of the effect that testifying would have on the child. The child does not necessarily have to testify, and the child’s current counselor or doctor does not have to testify. The Superior Court therefore held that the trial court properly permitted the complainant to testify via closed circuit television.

Tainted Testimony Is Not Admissible in Child Abuse Cases  

The Superior Court also rejected the argument that the complainant’s testimony should have been excluded due to taint. In every case, witnesses must be competent to testify. Competency requires:

  1. the ability to communicate,
  2. the mental capacity to observe the occurrence itself and the capability of remembering what it is that the witness is called to testify about, and
  3. 3) a consciousness of the duty to tell the truth.

In prior decisions, PA appellate courts have recognized that child witnesses are particularly susceptible to the world of make-believe and of suggestions, and taint has been described as “the implantation of false memories or distortion of actual memories through improper and suggestive interview techniques.” Therefore, where there is evidence that the testimony of a child witness has been tainted, it may be possible to exclude the testimony of the witness because the witness does not have the capability of remembering what it is the witness is called to testify about.

A defendant may move prior to trial to exclude the testimony of a tainted witness. When the defendant makes such a motion, the defendant bears the burden of producing evidence of taint and the burden of proving that the witness was tainted by clear and convincing evidence. This means that a defendant must be able to show that the witness’s testimony stems from repetitive, suggestive, or coercive interview techniques either on the part of an interested party such as the other parent or on the part of investigators.

Here, the Superior Court rejected the defendant’s argument that the testimony of the complainant had been tainted. The first disclosure of the sexual assault took place in the victim’s journal which she later provided to a counselor. She also did not initially disclose the sexual assault to investigators during the forensic interviews. The court found that the defendant failed to show that anyone had suggested to the complainant that she make the allegations or that any of the questioning was inappropriate. The witnesses testified that they did not use leading questions or in any way coerce the witness into making the allegations, and both the trial court and Superior Court accepted that testimony. In this case, the Court found that the record simply did not support the defendant’s arguments that the complainant should have been required to testify in open court or that the complainant’s testimony was tainted by the investigators.

Challenging Tainted Testimony and Tender Years Act Motions in Sexual Assault Cases

Although the defendant did not win in this particular case, the Superior Court’s opinion explores two significant issues which often arise in sexual assault cases involving children. First, it is important to fight against any attempts on the part of the Commonwealth to take shortcuts and protect its witnesses from open cross-examination. The Confrontation clauses of the Pennsylvania and United States Constitutions give criminal defendants the right to confront the witnesses against them. These clauses have been interpreted as providing defendants the right to have their attorneys cross-examine adverse witnesses in open court with the idea that cross-examination is the best method for determining whether or not witnesses are telling the truth. When the Commonwealth can shield its witnesses from appearing in open court, it makes it easier for the witnesses to fabricate stories because it is easier to lie when you do not have to face the person that you are lying about. Therefore, it is important to challenge the Commonwealth’s motions in these types of cases and fight for open cross-examination. Second, it is critically important that the defense attorney fully investigate these cases and be extremely familiar with the discovery and contents of the forensic interviews that prosecutors typically rely upon. If it can be shown through the Commonwealth’s evidence or through the testimony of defense witnesses that the complainant has been coached and had his or her testimony tainted through the suggestions or coercion of others, then it may be possible to have the testimony excluded.

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Goldstein Mehta LLC Challenges PennDOT Policy of Suspending Driver’s Licenses for Drug Convictions

Goldstein Mehta LLC has joined with Equal Justice Under Law, a Washington, D.C. based non-profit to challenge Pennsylvania’s discriminatory driver’s license suspension scheme as it relates to drug possession convictions that have nothing to do with driving. Pennsylvania law requires courts to notify PennDOT whenever a defendant is convicted of a drug possession offense such as Knowing and Intentional Possession of a Controlled Substance, Possession With the Intent to Deliver, and Possession of a Small Amount of Marijuana. Once PennDOT is notified of the conviction, PennDOT is required to suspend the defendant’s driver’s license as follows:

  • First Offense: Six Month Driver’s License Suspension
  • Second Offense: One Year Driver’s License Suspension
  • Third Offense: Two Year Driver’s License Suspension

Obviously, the loss of one’s driver’s license can lead to the inability to work, run a business, or even help family members get to medical appointments. This is particularly problematic when there are many entry-level jobs which are accessible to almost anyone but involve driving such as Uber, Lyft, and delivery services. Further, the driver’s license suspension has absolutely nothing to do with driving as it is triggered only by a conviction for drug possession regardless of whether the drug possession took place in a car.

Although Possession of a Small Amount of Marijuana carries a maximum penalty of 30 days in jail or 30 days of probation, the same conviction can lead to a two-year driver’s license suspension for a third offense. Thus, if someone is caught possessing a few grams of marijuana on three occasions, they will have their driver’s license suspended for two years even when none of the incidents took place in a car or while the person was driving. This two-year suspension is a longer suspension than that imposed even for a third offense Driving Under the Influence conviction.  

This driver’s license suspension scheme has an extremely disproportionate impact on poor and minority citizens of Pennsylvania, and it simply makes no sense. Although legislation has been introduced in the state legislature that would eliminate this unfair penalty, that legislation has not yet passed and its prospects are uncertain. This lawsuit could force the state and PennDOT to reconsider this unfairly punitive and discriminatory scheme. Attorney Goldstein is serving as local counsel in the case, which was filed in the Eastern District of Pennsylvania. The case is Harold v. Richards, et al, 2:18-cv-00115-CMR.  

Learn More: 

Read the Complaint

Press Release from Equal Justice Under Law  


PA Superior Court Reverses Robbery Conviction After Finding Prosecutors Struck Jurors Due to Race

Prosecutors May Not Discriminate Against Jurors Based On Race

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esq.

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esq.

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Edwards. The Court reversed Edwards’ multiple convictions for gunpoint robbery after finding that the prosecution improperly struck jurors because they were African American. The Court concluded that the defendant successfully raised a challenge to the prosecution’s decisions during jury selection under the United States Supreme Court’s decision in Batson v. Kentucky.

Edwards was charged with multiple gunpoint robberies and related charges for allegedly robbing five men and shooting one of them. His co-defendant took a plea deal and testified against him in exchange for a reduced sentence, and the jury found Edwards guilty of all of the charges. After he was convicted, he was sentenced to 22 to 44 years of incarceration.

Edwards appealed, raising challenges to the sufficiency of the evidence as well as what is called a Batson challenge. The Superior Court rejected the challenges to the sufficiency of the evidence, but it found that the trial court should have granted the defendant’s motion to seat excluded African American jurors pursuant to Batson. A Batson challenge involves challenging the prosecution’s use of race as a factor in picking and striking jurors during jury selection. In Batson, the United States Supreme Court held that the prosecution violates the Equal Protection Clause of the United States Constitution by striking potential jurors solely on the basis of race.

Batson Challenges

In Pennsylvania, the analysis under Batson involves three stages. First, the defendant must make a prima facie showing that the circumstances give rise to an inference that the prosecutor struck one or more prospective jurors due to their race. Second, when the defense can make such a showing, the burden shifts to the prosecutor to provide race-neutral reasons for why the prosecutor struck the jurors at issue. Third, the trial court must then make the ultimate determination as to whether the defense has proven purposeful discrimination against jurors based on race.

Here, the defendant was able to show that the prosecution had discriminated against the jurors based on race for a number of reasons. First, the trial court used an incredibly suspect method of jury selection in which the list of jurors from which the parties made their peremptory challenges (strikes) included the race and gender of every juror. Second, in making its eight strikes, the prosecutor struck seven African Americans and an eigth non-caucasian potential juror, meaning that every single prosecution strike was of a minority. Third, the Superior Court found that the prosecution’s reasons for striking the jurors were not plausible. For example, the prosecutor stated that the Commonwealth struck jurors because they were joking with each other or because of they way they were sitting. Although those reasons would be facially race-neutral for purposes of the second part of the test, the Superior Court found that the reasons simply were not persuasive given the improper juror list and statistics involved.

Ultimately, during jury selection, the parties considered 30 potential jurors. Of those 30, 13 were African-American. The Commonwealth used seven of its eight strikes on African-Americans, and it used the eighth strike on a member of a different minority group. The Commonwealth did not strike a single white juror. Although statistics alone cannot prove a discriminatory intent on the part of the prosecutor, the Court was appalled by the fact that the prosecution used all eight strikes on minorities and then attempted to explain its decision to do so by stating that it did not like the way one of the potential African American jurors was leaning while sitting. This was particularly true in light of the fact that the trial court had actually instructed the jurors at the beginning of jury selection to sit back and relax because the process would take some time. Thus, the Court found that the Commonwealth’s reason was implausible. The Court reversed the defendant’s conviction and remanded the case for a new trial.

Pennsylvania and United States law prohibit the Government from excluding jurors based on race. In most cases, this rule is difficult to enforce because prosecutors will be able to protect themselves by striking some white jurors. It is also typically easy to come up with reasons for striking the jurors which are unrelated to race. However, where the Commonwealth seems to be engaging in a pattern of racial discrimination during jury selection, it is important to raise a Batson challenge in order to either have the jurors seated or preserve the issue for appeal. It is also important to remember that Pennsylvania law requires the party making a Batson challenge to include on the record the race of the stricken prospective jurors, the race of prospective jurors who were acceptable to the striking party but stricken by the party making the challenge, and the racial composition of the jury seated for trial.

Facing Criminal Charges? We Can Help 

Philadelphia Criminal Defense Lawyers

Philadelphia Criminal Defense Lawyers

Our Philadelphia Criminal Defense Lawyers represent individuals and organizations who are charged with crimes or under investigation in all types of state and federal criminal matters at the trial level. If you are facing charges, call or text 267-225-2545 for a free criminal defense strategy session. Our attorneys are licensed in Pennsylvania and New Jersey and routinely appear in the Philadelphia courts as well as in the surrounding counties of Delaware, Bucks, Montgomery, and Chester. We handle preliminary hearings, grand jury investigations, pre-trial motions such as motions to suppress, motions to quash, motions to dismiss, and speedy trial motions, as well as bench and jury trials. We have had success both in obtaining dismissals before trial and acquittals at trial in front of judges and juries. If you are facing criminal charges, we can help.