Philadelphia Criminal Defense Blog

Zak Goldstein 5/13/26 Zak Goldstein 5/13/26

PA Supreme Court: Trial Courts May Reject a Nolle Prosse Motion Under the “Valid and Reasonable” Standard

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided Commonwealth v. Harrison, holding that a trial court still gets the final say on whether a district attorney may abandon a case by entering a nolle prosequi or nolle prosse. The Court reaffirmed the old Reinhart test: the Commonwealth’s reason for dropping the case must be valid and reasonable, and refused to extend the much more deferential In re Ajaj standard, which only applies to a DA’s decision to disapprove a private criminal complaint at the front end of a case.

The Facts

In May 2018, the complainant walked into a Santander Bank in York and tried to withdraw money without ID. His mother later told police he had just been released from the hospital and seemed delusional. The complainant refused to leave, and the bank called 911.

The defendant, who was a police officer, responded. After the complainant would not leave, the defendant tried twice to Tase him without success. A second officer arrived, and the two of them wrestled the complainant to the ground, handcuffed him, and walked him out to the patrol car. When the complainant would not bend down to get into the back seat, the defendant said he was going to drive-stun the complainant in the thigh. Instead of drawing his Taser, he drew his Glock, put it against the complainant’s thigh, and pulled the trigger. The complainant yelled, “Dude why’d you shoot me?” He spent 17 days in the hospital.

The state police charged the defendant with one count of negligent simple assault, a second-degree misdemeanor. The magistrate held the case for court.

The DA Tries to Drop the Case — Twice

The York County DA never tried the case. Instead, it filed two motions to nolle prosequi or suspend/dismiss the charges.

The first motion argued that prosecution was no longer in the interests of justice. The defendant had a 16-year career, was remorseful, his department had been disbanded, and he had agreed to speak to police cadets about avoiding this kind of mistake. The DA said continued prosecution would be punishment for punishment’s sake. The trial court denied the motion. The complainant, the actual victim, testified that no one from the DA’s office had ever spoken to him and that he had learned about the motion from the newspaper.

The second motion took a different angle. A bank customer named Harry Harrington, who had witnessed the shooting, had died in March 2019. The DA now claimed Harrington was the only independent witness and that without him the Commonwealth could not meet its burden of proof. The trial court called the motion “quite lame.” Harrington had died before the DA filed the first motion, in which the DA did not even mention his death. There were other witnesses, including the bank cleaner, who had no connection to either the police or the victim and who had already testified at the preliminary hearing that she saw the defendant shoot the complainant.

The Superior Court affirmed. The DA appealed to the Supreme Court.

The Supreme Court’s Decision

Chief Justice Todd wrote for the majority, joined by Justices Donohue, Wecht, and Brobson. Justices Dougherty and Mundy concurred in part and dissented in part. Justice McCaffery did not participate.

The Court refused to give the DA the deference it wanted. Ajaj holds that a court may overturn a DA’s rejection of a private criminal complaint only for bad faith, fraud, or unconstitutionality. The DA argued the same narrow standard should apply when it wants to drop a case it already filed. The Court said no. Once the DA brings charges, gets a magistrate to hold them for court, and pulls the judiciary into the case, the trial court is not a rubber stamp. It can, and must, independently evaluate whether the DA’s reason for walking away is valid and reasonable.

The Court traced the rule back to an 1850 statute that has always required the trial court’s written approval before a DA can enter a nolle prosequi. That requirement now lives in the Judicial Code and in Pa.R.Crim.P. 585. The Court reaffirmed Reinhart: the trial court accepts the DA’s factual claims if they are supported by a preponderance of the evidence, and then makes its own legal judgment on whether the reason is good enough.

Applying that test, the Court agreed with the trial court that the DA’s second reason, Harrington’s death, was neither valid nor reasonable. Other witnesses could establish what happened, there was video from inside the bank, and the DA had not bothered to mention Harrington’s death in its first motion more than a year after he died.

Why It Matters

This decision keeps the trial court in the picture. A DA cannot get a case held for court and then unilaterally walk away because the office has changed its mind, especially when the victim opposes the dismissal. The reason has to hold up to actual scrutiny.

It is also a useful boundary on Ajaj, which Commonwealth offices have been trying to stretch into other contexts. Harrison confines it to the front end of a case — the decision to charge in the first place — and leaves Reinhart in charge of everything that comes after.

The case cuts both ways for the defense. A defendant who has negotiated a quiet nolle prosse cannot count on the trial court rubber-stamping it. But a defendant whose case the DA is trying to drop in a way that hurts the defense, for example, dropping then refiling, or dropping to avoid an unfavorable ruling, has real ammunition to insist that the court take an independent look at the reason.

Facing Criminal Charges? We Can Help.

Goldstein Mehta LLC Criminal Defense Attorneys — Goldstein Mehta LLC Criminal Defense

If you or a loved one are facing criminal charges, serving a state sentence in Pennsylvania, or exploring a direct appeal or PCRA petition, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey, and we have 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 5/12/26 Zak Goldstein 5/12/26

PCRA Court Grants New Trial for Attorney Goldstein’s Client in Internet Contraband Case Following Successful Appeal

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, has secured a new trial for his client, M.D., in a long-running child pornography case in the Philadelphia Court of Common Pleas. Following the Pennsylvania Superior Court’s July 2025 decision reversing the denial of M.D.’s Post Conviction Relief Act petition and remanding the matter, the PCRA court entered an order on April 10, 2026 granting PCRA relief and awarding M.D. a new trial. The PCRA court also granted bail pending any further appeals, meaning that after years of incarceration on the underlying conviction, M.D. will be released from custody while the case proceeds.

The Commonwealth filed a notice of appeal from the order granting PCRA relief on April 22, 2026, and the PCRA court issued a supplemental opinion on April 27, 2026 explaining its decision.

Background

M.D. was convicted at a second jury trial of dissemination of child pornography, fifteen counts of possession of child pornography, and one count of criminal use of a communication facility. His first trial had ended in a mistrial because the jury could not reach a unanimous verdict. The trial court sentenced him to an aggregate term of five to ten years’ incarceration, followed by seven years of reporting probation. The Superior Court affirmed the judgment of sentence on direct appeal, and the Supreme Court of Pennsylvania denied allowance of appeal.

M.D. then filed a timely PCRA petition raising claims of ineffective assistance of trial and appellate counsel. The PCRA court appointed new counsel, who amended the petition, and the PCRA court ultimately dismissed it. M.D. then retained Attorney Goldstein for the appeal from the denial of his first PCRA petition.

On the first appeal, Attorney Goldstein raised layered claims of ineffective assistance — arguing both that trial counsel mishandled key aspects of the defense and that initial PCRA counsel failed to raise those issues in the amended PCRA petition. In particular, PCRA counsel had not argued that trial counsel was ineffective for repeatedly informing the jury that, when the police executed a search warrant at his home and read him Miranda warnings, M.D. declined to give a statement, refused to sign the Miranda waiver, and asked to speak with a lawyer.

The Superior Court initially remanded the case for an evidentiary hearing on the layered claims of ineffectiveness. On remand, the PCRA court heard testimony from trial counsel and from prior PCRA counsel and again denied the petition. Attorney Goldstein appealed a second time.

The Superior Court’s July 2025 Decision

In a non-precedential decision filed July 28, 2025, the Superior Court reversed in part and remanded. The Court held that M.D. had established all three prongs of the ineffective assistance test as to trial counsel’s repeated references to his pre-arrest, post-Miranda silence.

The Court explained that trial counsel’s injection of M.D.’s silence into the case was not “circumspect” or limited to its context. Instead, trial counsel referenced M.D.’s silence in her opening statement and twice elicited testimony about it on cross-examination of officers. Although trial counsel testified that her strategy was to portray M.D.’s silence as the conduct of an innocent person who understood the court system and reasonably wanted to consult a lawyer, the Superior Court rejected that strategy as unreasonable. The Court reasoned that omitting any mention of his silence offered a substantially greater chance of success, and that “most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt,” citing Commonwealth v. Turner, 454 A.2d 537, 539 (Pa. 1982).

On prejudice, the Superior Court found a reasonable probability that the jury inferred guilt from M.D.’s invocation of his right to remain silent while police executed a search warrant for devices suspected of containing child pornography. The Court concluded that confidence in the verdict was undermined and remanded for the PCRA court to determine whether M.D. had also satisfied the prongs of ineffectiveness as to initial PCRA counsel for failing to raise the issue.

The Commonwealth then filed a petition for allowance of appeal in the Pennsylvania Supreme Court. The Supreme Court denied that petition on February 6, 2026, leaving the Superior Court’s decision intact.

The PCRA Court Grants a New Trial on Remand

On remand, the PCRA court was tasked with deciding whether initial PCRA counsel had been ineffective for failing to raise trial counsel’s improper references to M.D.’s silence in the amended PCRA petition. In a supplemental opinion filed April 27, 2026, the PCRA court explained that, in light of the Superior Court’s holding that the underlying claim against trial counsel was meritorious, it was constrained to find that initial PCRA counsel was ineffective as well.

The PCRA court reasoned that because the Superior Court had already determined that trial counsel had no reasonable basis for her strategy and that M.D. was prejudiced as a result, initial PCRA counsel likewise had no reasonable basis for omitting that claim from the amended petition, and M.D. had necessarily satisfied the prejudice prong of his layered claim. The PCRA court therefore granted PCRA relief and ordered a new trial.

Equally important for M.D. and his family, the PCRA court also granted bail pending any further appeals. As a result, M.D. is set to be released from state prison while the Commonwealth’s appeal proceeds, rather than continuing to serve a sentence that has now been vacated.

Why This Result Matters

This case illustrates several important points about Pennsylvania post-conviction practice. First, layered claims of ineffective assistance — those that allege both that trial counsel was ineffective and that prior PCRA counsel was ineffective for failing to raise the underlying claim — can succeed even after a PCRA petition has already been litigated and denied. A petitioner who is represented by new counsel on appeal from the denial of a first PCRA petition may be able to preserve and litigate claims that earlier counsel overlooked.

Second, the case underscores how dangerous it can be for defense counsel to introduce evidence of a client’s post-Miranda silence, even when counsel believes the silence supports an innocence narrative. Pennsylvania courts have long recognized that references to an accused’s exercise of the right to remain silent may jeopardize the presumption of innocence. Commonwealth v. Molina, 33 A.3d 51 (Pa. Super. 2011) (en banc), aff’d, 104 A.3d 430 (Pa. 2014); Commonwealth v. Turner, 454 A.2d 537 (Pa. 1982). As the Superior Court emphasized here, lay jurors are more likely to view an invocation of the Fifth Amendment as a badge of guilt than as a sign of innocence.

Finally, the bail order is a meaningful and often overlooked aspect of post-conviction litigation. When a PCRA court grants a new trial, the conviction and sentence are vacated. Once those have been vacated, the trial court has discretion to set bail pending any appeal by the Commonwealth. Continued incarceration is not automatic, and in many cases it is appropriate for the client to be released while the appellate process plays out. This is important given that a Commonwealth appeal from an order granting a new trial can take years.

Facing Criminal Charges or Appealing a Criminal Case in Pennsylvania?

If you are facing criminal charges, under investigation, or considering an appeal or PCRA petition, our firm can help. Goldstein Mehta LLC has successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey, including in cases involving 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, and we frequently spot issues and defenses that other lawyers miss. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 5/11/26 Zak Goldstein 5/11/26

PA Superior Court Continues Eliminating Strunk’s Limits on the Unlawful Contact With a Minor Statute

The Pennsylvania Superior Court has decided the case of Commonwealth v. Smith, 2026 PA Super 69, affirming two convictions for unlawful contact with a minor on remand from the Pennsylvania Supreme Court. The Supreme Court had sent the case back so the Superior Court could reconsider it in light of Commonwealth v. Strunk, the 2024 decision that narrowed 18 Pa.C.S.A. § 6318 to communications designed to induce or otherwise further the sexual exploitation of a child. On remand, the Superior Court read Strunk to permit a Section 6318 conviction based on a few words the defendant spoke during the physical assault itself. That reading is hard to square with what the Supreme Court actually said in Strunk, and it deserves another look from the Supreme Court.

The Facts of Smith

The defendant was a frequent visitor to a Philadelphia home where two young girls lived. He was a close family friend, and the children referred to him as an uncle. Both girls testified to repeated sexual abuse in the home over a period of years. Some of those acts involved no communication at all. A few of them involved short verbal directives: the defendant told both girls to perform oral sex on him, and on one occasion he told one of the girls to lie down on a table in the basement before he assaulted her.

A jury convicted the defendant of multiple sexual offenses against both girls, including two counts of unlawful contact with a minor under Section 6318. The trial court imposed an aggregate sentence of 30 to 60 years’ incarceration followed by 10 years’ probation.

What Strunk Actually Held

Strunk was a real change in the law. For years, the Superior Court had treated “contact” under Section 6318 broadly enough that the statute essentially functioned as an add-on count whenever a defendant physically touched a child in a sexual way. The Supreme Court rejected that reading. It held that Section 6318 does not criminalize inappropriate touching of minors at all—other statutes do that—and that the statute is fundamentally about communication designed to induce or otherwise further the sexual exploitation of a child. The Court described Section 6318 as essentially an anti-grooming statute. The point of the law, in other words, is to capture conduct that leads up to an assault: the manipulation, the isolation, the inducement, and to give prosecutors a charge for that preparatory conduct that the rest of the Crimes Code does not otherwise reach.

In Strunk itself, the conviction was reversed because there was no communication. The defendant assaulted the victim while she was asleep or feigning sleep and never spoke to her. The Supreme Court held that the jury would have had to speculate to find any communicative act, and Section 6318 therefore did not apply.

The Superior Court’s Decision in Smith

On remand, the Superior Court affirmed the unlawful contact convictions. It distinguished Strunk on the ground that, unlike the sleeping victim in Strunk, the children here heard the defendant say a few words to them. He told them to perform oral sex. He told one of them to lie on the table. According to the Superior Court, those statements were communications designed to induce or further the sexual exploitation of the children and were therefore enough to support the Section 6318 convictions, even though each statement was made in the middle of the very assault it supposedly induced.

The Court also rejected the defendant’s argument that a Section 6318 communication has to be temporally separated from the assault itself. It read recent Superior Court cases, including one where a defendant screamed at his daughter to come into a trailer before assaulting her, and another where a defendant told a teenage passenger to sit in the front seat of his car before allegedly assaulting her, as standing for the proposition that any communication that places a victim in position for an assault is enough, regardless of when it is made.

Why This Reading of Strunk Is a Problem

The whole point of Strunk was that Section 6318 is not supposed to be a free additional count tacked on to every sexual assault of a child. The statute is meant to capture the kind of conduct that precedes and sets up the assault—grooming, inducement, manipulation, getting the victim alone or in a particular place. That kind of conduct is genuinely separate from the act of assault itself, and that separation is what makes Section 6318 something more than a redundant add-on to the underlying sex offense.

A statement made during the assault such as telling a child to lie down at the moment the assault is happening, or demanding oral sex as part of the act, does not fit that description. It is the offense, not a communication designed to facilitate the offense. As the defendant pointed out in his supplemental brief, if the verbal demand to perform oral sex is enough to support a separate Section 6318 conviction, then so is every other utterance during every sexual assault, and the statute really does become the add-on offense Strunk said it was not. That argument deserved more weight than the Superior Court gave it.

There is a meaningful difference between the cases the Superior Court cited and what happened in Smith. The screamed directive to come into a trailer and sleep in the defendant’s bed at least occurred before the assault began and arguably moved the victim into a place where the assault could happen, and sleeping in the bed is potentially sexual. A statement made in the middle of penetrating a child is not facilitating anything; it is part of what is being done. The Superior Court is treating those two situations the same, and in doing so it is collapsing the line that Strunk tried to draw.

The Supreme Court Should Take Another Look

The Supreme Court warned in Strunk itself that the decision did not resolve every question about what communications qualify under Section 6318, and the Court invited the lower courts to develop the doctrine. The Superior Court’s answer so far has been to read Strunk as narrowly as possible. The court is preserving Section 6318 essentially intact in any case where a defendant said anything at all to a victim. That cannot be what the Supreme Court meant. The right rule, and the one that actually follows from Strunk, is that the communication has to be separate from the assault. It must be a step taken to bring the assault about, not the assault itself.

Until the Supreme Court takes one of these cases and says so clearly, defense counsel should keep pressing the point. Strunk is still useful: where there is no communication at all, Section 6318 still does not apply. And where the only “communication” the Commonwealth can point to is something the defendant said in the middle of the physical act, the sufficiency argument is a real one, even if, for now, the Superior Court is not buying it.

Facing Criminal Charges? We Can Help.

Zak Goldstein 5/6/26 Zak Goldstein 5/6/26

Not Guilty: Attorney Goldstein Wins Full Acquittal in First-Degree Murder Case

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire of Goldstein Mehta LLC recently won a full acquittal at trial on charges of first-degree murder, attempted murder, burglary, and Violations of the Uniform Firearms Act in Commonwealth v. R.B. The jury found the client not guilty on every count.

This was a tough case. The Commonwealth alleged that the client kicked in the door of a Philadelphia row home, walked upstairs, and shot two people in a second-floor bedroom, killing one and shooting the surviving complainant in the head. The surviving complainant was the client's sister. She testified at trial and identified the client as the shooter. There was no obvious reason in the evidence for her to make it up.

The Pre-Trial Motions

A lot of the work in this case happened before the trial. The Commonwealth filed a Pa.R.E. 404(b) motion to introduce evidence that the client had been arrested on unrelated charges involving allegations against the complainant's daughter. Attorney Goldstein filed a brief in opposition arguing that the link to the shooting was speculative and that the prejudice of putting child abuse allegations in front of a homicide jury would be overwhelming. The Court agreed and excluded the evidence. That ruling was critical to the outcome.

The Trial

The complainant testified that her brother shot her. But on cross-examination, Attorney Goldstein pointed out that she had told a very different story for hours after the shooting. She did not name the client on the 911 call. She did not name him to the responding officers or paramedics on scene. She told emergency room staff that she did not know who the shooter was. Even after she identified the client to homicide detectives at the hospital around midnight, hospital records showed her continuing to describe an unknown assailant to the nurse practitioner who took her history and physical hours later.

A neighbor across the street, interviewed within minutes of the shooting, described seeing a thin male around 5'7" in a black hoodie, tan pants, and tan boots running away from the house with his hands in his pockets. The client was 59 years old, 5'11", over 230 pounds, used canes, and was authorized for more than 50 hours per week of home health aide services. He was not running anywhere, and by investigating the case and obtaining the client’s medical records, Attorney Goldstein was able to prove this to the jury.

Attorney Goldstein also emphasized the lack of forensic evidence.e The Commonwealth presented no DNA, no fingerprints, no recovered firearm, no gunshot residue, and no cell site data placing the client at the scene. He had googled information about the shooting the next day, but Attorney Goldstein successfully argued that this was equally consistent with innocence. The front door had been kicked in, but despite testifying that she had had the locks changed before the shooting, the complainant admitted on cross that she had testified at a prior hearing that the client still had a key. Finally, the car the Commonwealth claimed was the client's driving past the house on video cameras was not actually the same car — the roof rack was a different color and the trim did not match, and the lead detective conceded as much on cross-examination, realizing for the first time when the defense pointed it out that the cars were not the same.

Ultimately, the entire case depended on whether Attorney Goldstein was able to use cross-examination to convince the jury that the complainant was lying when she testified that her brother shot her in the head and killed her boyfriend. The cross-examination was successful. The jury came back in about an hour with a verdict of not guilty on first-degree murder, third-degree murder, attempted murder, aggravated assault, burglary, and the firearms charges.

Facing Criminal Charges in Pennsylvania?

If you or a loved one is 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 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 more than a decade in prison for a crime 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.