Philadelphia Criminal Defense Blog

Zak Goldstein 5/23/26 Zak Goldstein 5/23/26

PA Supreme Court: ShotSpotter Alert Plus Furtive Movements and Walking Away Provides Reasonable Suspicion

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided Commonwealth v. Foster, No. 12 WAP 2024 (Pa. May 19, 2026), holding that the totality of the circumstances supported reasonable suspicion to detain the defendant after a ShotSpotter alert reported gunfire on a residential block at 2:00 a.m. The Court declined to address whether ShotSpotter alerts, standing alone, are reliable enough to support a Terry stop, treating the alert here as one factor among several.

There is also a meaningful win for the defense bar tucked inside the opinion. The Court refused to credit the Commonwealth’s “high-crime area” argument because the officer’s testimony was too vague and was not tied to the time of the stop. That portion of the decision reinforces last year’s ruling in Commonwealth v. Lewis, 343 A.3d 1016 (Pa. 2025), and gives defense counsel a usable tool at suppression hearings.

The Facts

At around 2:00 a.m. on September 17, 2019, a Pittsburgh police officer received a ShotSpotter alert reporting a single gunshot near 1439 Hoffman Street. A second alert reported four more shots at the same location while the officer was en route. He reached the intersection of Hoffman and Chateau Streets about ten to fifteen seconds after the second alert and saw a parked car with its headlights on. The defendant was in the driver’s seat. A woman was in the passenger seat. They were the only people on the street.

As the officer turned onto Hoffman Street and activated his overhead lights, the defendant got out of the car and walked toward a nearby residence. The officer testified that the female appeared to be “moving around in the car trying to grab things,” including her purse. The officer exited his cruiser and ordered the defendant to return to the street. When he did not comply, officers drew their weapons and forcibly handcuffed him.

After the seizure, officers recovered shell casings near the car and a firearm in the woman’s purse. The woman later admitted she had accidentally discharged the weapon inside the vehicle. The defendant meanwhile, smelled of alcohol and his eyes were glassy. He failed field sobriety testing, and his BAC came back at .200. He was charged with DUI and with driving while his operating privilege was suspended.

The defendant filed a motion to suppress, arguing that the seizure was not supported by reasonable suspicion. The trial court denied the motion, the defendant was convicted at a bench trial, and the Superior Court affirmed in an unpublished memorandum. The Supreme Court granted allocatur to address whether the lower courts placed too much weight on the defendant’s spatial and temporal proximity to the ShotSpotter alerts.

The Legal Framework

Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment both prohibit unreasonable seizures. An investigative detention (a Terry stop) must be supported by reasonable suspicion of criminal activity. Reasonable suspicion is less demanding than probable cause but still requires “specific and articulable facts” supplying a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” The stop must be “justified at its inception,” and facts that develop only after the seizure cannot retroactively support it.

The parties agreed that the seizure occurred when the officer exited his cruiser and ordered the defendant back to the street. The question was whether the totality of the circumstances at that moment supplied reasonable suspicion.

The Supreme Court’s Holding

The Court held that the totality of the circumstances supported reasonable suspicion. It identified four factors: (1) two ShotSpotter alerts indicating gunfire in a residential neighborhood in the middle of the night; (2) the officer’s rapid response, which left limited opportunity for a shooter to flee the immediate area; (3) the fact that the defendant and the woman were the only people present at the precise location of the alerts; and (4) what the Court characterized as the pair’s “furtive and evasive behaviors” when the officer arrived — the woman moving around inside the car as the cruiser approached with overhead lights activated, and the defendant getting out of the car and walking toward a private residence as the officer pulled up.

The Court declined to treat ShotSpotter alerts as the equivalent of anonymous tips. The defendant and amici — the ACLU, the Pennsylvania Innocence Project and PACDL, and the Allegheny County Public Defender’s Office — had urged the Court to adopt that framework and require independent corroboration of the alert before it could be used to justify a stop. The Court called the proposed framework one that would “unnecessarily complicate[ ] the straightforward legal issue presented,” and resolved the case on a totality-of-the-circumstances basis instead. Importantly, the Court did not actually decide whether ShotSpotter is reliable. It described the technology’s reliability as not properly preserved and ultimately immaterial on the record before it.

The High-Crime Area Argument Fails

The most useful part of the opinion for defense practitioners is the Court’s rejection of the Commonwealth’s “high-crime area” argument. The entirety of the proof was an officer’s answer to a leading question: asked whether the area was “known as a high-crime area,” he replied, “Manchester has its hot spots, yes,” and confirmed that the location “has been” a hot spot “in the past.”

Citing Lewis, the Court reiterated that “merely intoning buzzwords is never sufficient to prove an area is high in crime,” and that conclusory testimony characterizing an area “in broad generalities” does not establish the factor. The Commonwealth must also tie the testimony to the time of the stop, not to some unspecified moment “in the past.” The Court accordingly removed the high-crime area factor from the analysis.

Although the use of ShotSpotter as a factor is bad for the defense, the high crime analysis is helpful. The high crime area label has been doing a lot of heavy lifting in Terry stop cases for years, often supported by nothing more than an officer reciting the magic words on direct. After Lewis and now Foster, that testimony has to come with specifics: what kind of crime, how the officer knows, and a nexus to the time and place of the stop, or it does not count at all.

The Takeaway

Foster expands the set of circumstances in which a ShotSpotter alert can be used to justify an investigative detention in Pennsylvania. The Court did not hold that a ShotSpotter alert alone supports reasonable suspicion, and it expressly declined to decide whether ShotSpotter alerts are reliable enough to be treated like other evidence of crime. But it did hold that an alert, combined with the defendant’s presence at the reported location moments after the alert, the absence of any other people on the scene, and what the Court characterized as furtive and evasive behavior, is enough.

At the same time, the decision continues the Court’s push, begun in Lewis, to require more than buzzwords before an area can be treated as a high-crime area in the reasonable-suspicion analysis. A one-line answer from an officer that the location has been a “hot spot” in the past is no longer sufficient on its own.

Facing Criminal Charges? We Can Help.

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

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

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.

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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.