Philadelphia Criminal Defense Blog

Zak Goldstein 2/12/25 Zak Goldstein 2/12/25

Attorney Goldstein Wins Reversal of Dismissal of PCRA Petition on Prosecutorial Misconduct Claim

Criminal Defense Lawyer Zak Goldstein — Criminal Defense Attorney Zak Goldstein

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, recently won the Superior Court appeal of the denial of a PCRA petition. In the case of Commonwealth v. S.D., the Superior Court reversed the denial of a PCRA petition and remanded the new case for an evidentiary hearing on whether trial counsel was ineffective in failing to object to improper arguments from the prosecutor during opening statements closing arguments.

S.D. was charged with burglary and related charges for an alleged home invasion burglary. During both opening statements and closing arguments, the prosecutor repeatedly urged the jury to imagine themselves in the victims’ shoes and think about how scary the incident must have been for them. S.D.’s trial attorney failed to object to this argument.

Pennsylvania appellate courts have long held that prosecutors may not make argument designed specifically to inflame the passions of the jury or designed solely to get the jury to convict based on sympathy for the victim. Prosecutors have lots of leeway in terms of being allowed to use oratorical flourish and in making argument, but there are limits. Indeed, courts have repeatedly held that urging jurors to imagine themselves as the victims of a crime is improper.

After S.D.’s appeals were unsuccessful, S.D. retained Attorney Goldstein to file a Post-Conviction Relief Act Petition (PCRA). Attorney Goldstein filed the petition, alleging that trial counsel provided the ineffective assistance of counsel in failing to object to the prosecutor’s improper argument. The trial court denied the petition, but the Superior Court reversed the denial of the petition on appeal. The Superior Court recognized that the case law generally prohibits prosecutors from making arguments similar to those at issue in this case. The Court therefore remanded the case for an evidentiary hearing on whether trial counsel had a strategic basis for failing to object. If the court finds that trial counsel did not have a good reason for failing to object, then S.D. may receive a new trial.

Facing criminal charges or appealing a criminal case in state or federal court in Pennsylvania? We can help.

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

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court, including 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 2/9/25 Zak Goldstein 2/9/25

Attorney Goldstein Wins Motion to Suppress Firearm

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

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire, recently won a motion to suppress a firearm in the case of Commonwealth v. J.C. In J.C., the client was charged with carrying a firearm on the streets of Philadelphia (VUFA § 6108), possession of a concealed firearm without a license (VUFA § 6106), possession of a controlled substance (K&I), and possession of a firearm by a prohibited person (VUFA § 6105). Prosecutors claimed that J.C. had a firearm in the glovebox of his car and marijuana in a bag sitting on the back seat of the vehicle.

Attorney Goldstein filed a motion to suppress the physical evidence in the Philadelphia Court of Common Pleas, arguing that the police improperly searched J.G.’s car without first obtaining a search warrant. Although they later obtained a search warrant before actually removing the gun from the vehicle, the police had already seen the gun due to the initial search before they obtained the warrant.

At a hearing on the motion, the Commonwealth called one of the arresting officers to testify as to the circumstances of the stop and search. The officer testified that they attempted to pull J.C. over for window tint. He initially pulled over right away, but then he started driving again for about half of a block. The police then pulled behind him again and waited for backup. As they were sitting and waiting for backup, they observed J.C. moving around the car in a furtive manner as if he were reaching for something, attempting to conceal something, or about to take off. They also believed that he was going to flee based on the way he was looking around.

Accordingly, once backup arrived, the police surrounded the car. J.C. repeatedly asked why they had stopped him and why they were trying to search the car. He provided them with his driver’s license, and he insisted that he had the registration and insurance paperwork on his phone. The police began to pull him out of the car, and he did not immediately go with them, so they then tased him. Once they tased him, they put him in handcuffs, arrested him, and took him to the hospital for medical treatment. After he was out of the car and had been tased, the officer looked in the glove box and saw a gun. The police then held the vehicle until detectives arrived and obtained a search warrant. At that point, they recovered the gun and the marijuana. J.C. had a criminal record which prohibited him from carrying a firearm, and he also did not have a license to carry.

Attorney Goldstein moved to suppress the evidence, arguing that the initial warrantless search of the vehicle was unconstitutional under the Pennsylvania Constitution and tainted the search warrant which the police obtained later. Attorney Goldstein also argued that the police did not have exigent circumstances for the search that would justify failing to get the warrant first.

Through cross-examination and body camera footage, Attorney Goldstein established that the police had not seen J.C. do anything other than drive a car that may have had window tint, he pulled over on command, he moved the car only about half a block before pulling over again, he told them that he had moved not to flee but because he was blocking traffic, and that they could not see in the car to see if he was actually doing anything while they were waiting for backup. Additionally, J.C. did not attempt to flee, he did not drive away, the police did not see any contraband in the vehicle, and he gave them his driver’s license. Accordingly, there was no actual reason to believe he was armed and dangerous. Further, once J.C. was out of the car and had been tased and arrested, the police were obviously not going to let him get back in the car. Instead, they had to take him to the hospital. Accordingly, under the recent case of Commonwealth v. Camacho, any exigent circumstances which might have justified a “frisk” of the vehicle and checking the glove box for a weapon had dissipated.

In general, the police must obtain a search warrant prior to searching a car. There are some exceptions, however. For example, the police may conduct a “frisk” of the passenger compartment of a vehicle for weapons when they have conducted a legal stop and they have reasonable suspicion to believe that the suspect is engaged in criminal activity and armed and dangerous. The frisk cannot be a search for evidence; instead, it is a search for weapons for officer safety purposes during the stop. Nervousness alone does not justify the frisk of a car, but nervousness along with furtive movements or other strange behavior may sometimes justify a frisk.

In this case, however, any need to conduct the frisk before obtaining a warrant ended when J.C. was removed from the car, tased, handcuffed, and arrested. At that point, even if he had initially posed some sort of threat to the officers’ safety, the threat had ended, and there was nothing preventing the officers from simply waiting until detectives could obtain a warrant. The trial judge agreed and granted the motion to suppress. The Commonwealth then withdrew the charges.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Criminal Defense Lawyer Zak T. Goldstein, Esquire — Goldstein Mehta LLC Criminal Defense Lawyers

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 1/30/25 Zak Goldstein 1/30/25

PA Superior Court: Confessions Made to Police Officers at Church Do Not Qualify for Clergy-Penitent Privilege

Criminal Defense Attorney Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Ross, holding that the trial court properly denied the defendant’s motion to suppress a confession made to a police officer because the clergy-penitent privilege did not apply even though the defendant knew the officer from church.

The Facts of Ross

The defendant was convicted of rape, unlawful contact with a minor, endangering the welfare of children, corruption of minors, indecent assault, and incest following a 2020 jury trial in the Philadelphia Court of Common Pleas. The case stemmed from an incident that took place on August 13, 2014. The defendant allegedly entered the bedroom of his 15-year-old foster daughter and sexually assaulted her. The defendant’s adult daughter saw him leaving the complainant’s room and alerted the defendant’s wife. She immediately called the police and kicked him out of the house.

After being expelled from the home, the defendant sought guidance from his pastor. His pastor was a longtime friend and fellow minister. After the defendant told the pastor that he fondled the complainant, the pastor then contacted a Philadelphia Police Officer who was also a pastor and co-host of a religious radio show and asked the officer to meet with the defendant at their church. The officer went to the church, and the defendant admitted to fondling the complainant to the officer. The officer then drove the defendant to the Special Victims Unit (SVU) to turn himself in.

The defendant was arrested and subsequently charged with multiple sexual offenses. He moved to suppress the statement to his pastor as well as the statement to the officer. The trial court excluded the statement which was made to the pastor under the clergy-penitent privilege, but it denied the motion with respect to the officer. The court found that the officer was acting as an officer and not as a pastor, and so the defendant was not entitled to the clergy-penitent privilege.

The defendant proceeded by way of jury trial, and the jury convicted him. The trial court sentenced him to 27.5 - 55 years’ incarceration and required him to register as a sex offender for life under SORNA. The defendant appealed to the Pennsylvania Superior Court.

The Superior Court Appeal

The defendant appealed his conviction, arguing that:

His statements to the police officer should have been suppressed because he made them while he was in custody and he had not received his Miranda warnings.
His confession to the officer should have been excluded under the clergy privilege because the officer was off-duty and present in the church in a religious capacity rather than acting as a police officer.

The Superior Court’s Ruling

The Superior Court rejected both claims and affirmed the conviction.

Miranda Violation Claim Denied: The Superior Court found that the defendant was not in custody when he made his statements to the officer. His meeting with the officer was voluntary, and he agreed to turn himself in. The officer was off-duty and never arrested the defendant. Instead, the pastor called the officer, and the defendant agreed to speak with him at the church. The police do not have to give Miranda warnings to someone who is not in custody because Miranda only applies to custodial interrogations. The defendant was not in custody at the church when he made the statement to the officer, so the officer did not have to provide Miranda warnings in order for the statement to be admissible at trial. The Court also noted that although the defendant filed a motion to suppress based on the lack of Miranda warnings, his attorney did not really pursue that claim at the motions hearing.
Clergy Privilege Claim Rejected: The Court agreed that the defendant’s initial conversation with his pastor was privileged, but it ruled that the privilege did not extend to statements made in the presence of the officer. The Court found that the defendant viewed the officer as a trusted police officer or friend, not a spiritual advisor, and sought his assistance in surrendering to authorities. The Court reached this conclusion even though the officer was also a pastor. It concluded that the officer was not acting as the defendant’s pastor as the time but instead there to help him turn himself in.

The clergy-penitent privilege is codified under Pennsylvania law. It provides:

23 Pa.C.S. § 5943. Confidential communications to clergymen.
No clergyman, priest, rabbi or minister of the gospel of any regularly established church or religious organization, except clergymen or ministers, who are self-ordained or who are members of religious organizations in which members other than the leader thereof are deemed clergymen or ministers, who while in the course of his duties has acquired information from any person secretly and in confidence shall be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding, trial or investigation before any government unit.

The problem for the defendant here is that both the trial court and Superior Court found that the officer was not acting in his course of duties as a pastor at the time of the confession. Therefore, the privilege did not apply.

The Takeaway

Ultimately, the result here is not particularly surprising. Non-custodial, voluntary confessions to police officers are typically going to be admissible in court even if the police officer knows the defendant from church. This case, however, highlights that Miranda rights only apply to custodial interrogations. If the defendant is not in custody and interrogated, then they are not entitled to Miranda warnings. Further, the remedy for a Miranda violation is the suppression of the statement; it is not necessarily the dismissal of the case. Additionally, privileges are important, but they only apply in limited circumstances. The clergy-penitent privilege does not apply unless the person is acting within the scope of their religious duties, and here, the officer was obviously a police officer rather than the defendant’s pastor. The privilege also does not apply when a third party is present. Therefore, the Superior Court denied the appeal.

Facing criminal charges or appealing a criminal case in state or federal court in Pennsylvania? We can help.

Zak Goldstein 1/29/25 Zak Goldstein 1/29/25

PA Superior Court: Conditions Violated Must Actually Be Part of County Probation or Parole Sentence for Defendant to Be Found in Violation of Probation

The Pennsylvania Superior Court has decided the case of Commonwealth v. Baldassano, 2025 PA Super 26, holding that the trial court improperly found the defendant in violation of county parole conditions which were never part of the defendant’s sentence. The Superior Court therefore vacated the defendant’s incarceration sentence and released him.

The Facts of Baldassano

The defendant was convicted of terroristic threats, stalking, and harassment after years of allegedly harassing a former college acquaintance. The charges stemmed from a pattern of anonymous phone calls, social media impersonation, and threats against the complainant and her family. Following a jury trial, he was found guilty and sentenced to a term of thirty days to four years’ incarceration with immediate parole at his minimum sentence along with certain conditions.

The parole conditions required:

A drug and alcohol evaluation and compliance with any treatment recommendations.
Continued mental health treatment.
Two years of active supervision followed by two years of inactive supervision, during which the court specifically ordered that he was only required to avoid contact with the victim and was not required to comply with any other probation department rules and regulations.

Parole Violation Allegation and Revocation

While the defendant was serving the “inactive supervision” portion of the county parole, the Lebanon County Department of Probation sought to revoke his parole, alleging:

Positive drug tests and possession of controlled substances.
A new criminal arrest.

At the defendant’s Gagnon II hearing, the defense attorney moved to dismiss the probation violation, arguing that neither condition applied to the defendant given the terms of the inactive supervision. The trial court dismissed the drug-related violation but revoked the defendant’s parole based solely on the new criminal charge. The trial court recommitted the defendant to serve the balance of his original sentence with parole eligibility after eighteen months. The defendant appealed.

The Superior Court Appeal

On appeal, the Pennsylvania Superior Court reversed the trial court’s order and found that the trial court erred in revoking parole. The Superior Court concluded that per the specific terms of the trial court’s sentencing order, the defendant was simply not subject to any conditions other than the requirement that he not have contact with the complainant. The Court found:

By the explicit terms of the sentencing order, after two years, the defendant was not subject to the normal county probation department rules and regulations, which included the requirement not to commit new offenses.
While committing a new crime typically warrants parole revocation in almost every case, it must be based on an actual parole condition to which the defendant was subject. Here, his only enforceable condition in the last two years of the sentence was to avoid contact with the complainant.
Because the Commonwealth and probation department had only pursued revocation based on new charges (and not a violation of any of the three enumerated parole conditions that applied during his sentence), the trial court lacked legal grounds to revoke his parole even though new arrests are usually the basis for probation or parole revocation.

The Superior Court therefore vacated the order sentencing the defendant to prison and remanded for further proceedings.

The Takeaway

In many cases, it is common for defense counsel to concede a probation or parole violation and focus on obtaining a light sentence such as more probation or parole or a short period of incarceration. It is important, however, to actually read the judgment of sentence and sentencing transcript in order to make sure that any alleged conditions of supervision are actually part of the sentence. If the probation or parole department has moved to hold a defendant in violation of a condition that does not exist, then the defendant should not be found in violation.

In order for there to be a probation violation, the conditions which were allegedly violated must have been explicitly stated on the record at the time of sentencing. They cannot be expanded unilaterally by probation officers beyond what the sentencing judge ordered without notice and a hearing. Notably, this rule does not always apply - defendants on state parole and state supervised probation may have fewer protections than defendants on county probation or parole because certain state statutes and regulations allow the parole board to impose some conditions of supervision.

Even serious new charges cannot justify revocation if the probation or parole sentence specifically limits the conditions of probation or parole such that it does not require the probationer to avoid getting arrested. This is an unusual case because this type of probation or parole is rare, but it is still important for the defense attorney to carefully review the record when representing someone who has been charged with a violation of probation or parole.