PA Superior Court Reverses Murder Conviction in Roosevelt Boulevard Drag Racing Case

Zak T. Goldstein, Esq. - Philadelphia Criminal Defense Attorney

Zak T. Goldstein, Esq. - Philadelphia Criminal Defense Attorney

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Akhmedov, finding that the Commonwealth failed to prove the charge of third degree murder where the defendant crashed into and killed pedestrians during a drag racing incident on Philadelphia’s Roosevelt Boulevard. The Court’s opinion details the type of evidence necessary for the prosecution to prove a third degree murder charge in a case involving reckless driving, drag racing, or a car accident.     

Commonwealth v. Ahkmedov

In Ahkmedov, the defendant was charged with multiple counts of third degree murder, involuntary manslaughter, homicide by vehicle, and recklessly endangering another person. The charges arose out of an incident which occurred on Roosevelt Boulevard. The defendant was driving southbound on the Boulevard, which has a speed limit of 40 miles per hour. At some point, the defendant began racing another driver. At each traffic light, the cars would rev their engines and race to the next light.

Police estimated that the cars traveled at around 70 miles per hour during the race. As the vehicles approached the intersection of the Boulevard and 2nd Street, the defendant began to travel at a minimum speed of 79 miles per hour. Although 79 miles per hour was nearly double the speed limit on that portion of the Boulevard, the evidence also showed that the intersection was not meant for pedestrian crossings. It did not have a crosswalk or signs warning drivers that pedestrians might be present. Unfortunately, Samara Banks and her three children were crossing the Boulevard as the defendant approached. The defendant attempted to swerve around them but was unable to do so. Instead, he struck Ms. Banks and her children, ultimately killing all four of them. The defendant remained at the scene and tried to render aid.   

Murder Charges for Drag Racing

Police arrested the defendant and charged him with homicide and the related charges. The defendant proceeded by way of bench trial, and the trial judge convicted the defendant of third degree murder, involuntary manslaughter, homicide by vehicle, and recklessly endangering another person. On appeal, the defendant challenged a number of evidentiary issues as well as whether the evidence was sufficient for a conviction on the third degree murder charges. Specifically, the defendant argued that the evidence failed to show that he acted with the necessary malice required to sustain a conviction for third degree murder because he did not operate his vehicle under circumstances which almost assured that injury or death would ensue.

The Defendant's Appeal

The Superior Court agreed and reversed the conviction for third degree murder. The Court noted that third degree murder occurs when a person commits a killing which is neither intentional nor committed during the perpetration of a felony, but contains the requisite malice. The definition of malice is well established in Pennsylvania, and courts have defined malice as follows:  

Malice exists where there is a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured. Where malice is based on a reckless disregard of consequences, it is not sufficient to show mere recklessness; rather, it must be shown the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily injury. A defendant must display a conscious disregard for almost certain death or injury such that it is tantamount to an actual desire to injure or kill; at the very least, the conduct must be such that one could reasonably anticipate death or serious bodily injury would likely and logically result. 

Obviously, there was no real dispute as to whether or not the defendant acted recklessly. Driving twice the speed limit through an intersection as part of a drag race was clearly reckless. However, in order for recklessness to qualify as malice, Pennsylvania courts have required the prosecution to prove “sustained, purposeful recklessness” such that the defendant must have known of and consciously disregarded the risk that death or serious bodily injury was reasonably certain to occur.

Generally, this level of sustained, purposeful recklessness requires factors like a “near miss,” a warning from a bystander or passenger to slow down and a decision to ignore the warning, and evidence that the defendant clearly saw and recognized the dangers. Finally, in almost every case in which the defendant was properly convicted of third degree murder as a result of a car accident, the prosecution was able to show that the defendant was intoxicated.  

Insufficient Evidence of Malice

In this case, the Court found that the prosecution did not establish the requisite level of recklessness. The defendant was reckless in driving at excessive speeds, but he did not have a near miss, he was not warned to slow down, and he was not intoxicated. He attempted to avoid hitting the victims but was unable to do so. Further, the pedestrians were crossing the road at an intersection where they should not have been crossing, and they were wearing dark clothes at night. Finally, the defendant stopped and attempted to assist them after he struck them.

Although the defendant had been pulled over for speeding as part of a road rage incident a week before, the prior traffic stop was not close enough in time to satisfy the “near miss” requirement or show that the defendant was aware of the likelihood of injuring a pedestrian at that particular location where the accident occurred. The Court concluded that the defendant’s recklessness satisfied the mens rea elements for the lesser included charges like manslaughter and recklessly endangering another person, but it did not satisfy the heightened mens rea requirement for murder.   

Because the third degree murder charge was the most serious charge, the court remanded the case for a new sentencing hearing on the remaining charges. The court did not find that the Commonwealth failed to prove all of the charges; just that they failed to prove the third degree murder beyond a reasonable doubt. Thus, it is clear that murder requires something more than recklessness. Instead, it requires the prosecution to prove malice. 

Philadelphia Criminal Defense Lawyers for Homicide Charges

Philadelphia Criminal Defense Lawyers

Philadelphia Criminal Defense Lawyers

Our Philadelphia Criminal Defense Lawyers have the expertise necessary to challenge the government each step of the way. We have experience working with expert witnesses, challenging identifications, fighting forensic evidence, and thoroughly investigating cases in order to find exculpatory evidence that the police might have missed. We know the defenses, and we know how to challenge each part of the Commonwealth’s case at the preliminary hearing, through pre-trial motions, and at trial with a judge or a jury. We also have extensive experience in negotiating for better outcomes for our clients, and we have obtained great results even in cases in which the Commonwealth has a great deal of evidence. If you or a loved one are under investigation or facing homicide charges, you need an experienced criminal defense attorney in your corner. Call 267-225-2545 for a free strategy session with one of our top-rated defense lawyers today. 

Unlawful Possession of a Concealed Firearm Requires Intentional Concealment

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Scott, holding that the charge of unlawful possession of a concealed firearm in violation of 18 Pa.C.S. § 6106 requires the Commonwealth to prove that the defendant intentionally, knowingly, or recklessly concealed the firearm. Thus, if the firearm became concealed by accident, then a criminal defendant would potentially have a defense at trial.

Commonwealth v. Scott

In Scott, police received a report of domestic violence in Westmoreland County. Detectives responded to the residence, and they eventually came into contact with the defendant. Officers asked the defendant to raise his hands so that they could see them, and then they arrested him for domestic violence. The officers next frisked the defendant for weapons. During the frisk, police found a Sig Sauer handgun in a holster that was located under the defendant’s t-shirt. The t-shirt was not tucked in. Instead, it was loose and hanging over the gun so that the gun was completely concealed.  

The defendant testified that although the t-shirt was in fact concealing the firearm at the time of his arrest, he had not concealed the gun on purpose. Instead, he testified that earlier in the day his t-shirt was tucked in. At the same time, he was wearing a hooded sweatshirt, and when he took the hoodie off, the hoodie must have pulled his t-shirt out of his waistband. Thus, he testified that he accidentally concealed the gun and did not realize that it had been concealed.

The defendant also had an Act 235 Certification, which generally allows security guards to carry concealed firearms in the course of performing their duties. Police agreed that the defendant told them he was going to be returning to work shortly as a security guard for a pawn shop in Pittsburgh. He also planned to drive to a qualification shooting course later in the day for his seasonal job as a public safety officer with a local amusement park. The defendant did not, however, have a license to carry a concealed firearm, and he was obviously not at work at the time of his arrest.

The Trial Court's Ruling 

The trial court found that Act 235 did not give the defendant the right to carry the firearm while not on duty and that the statute did not distinguish between an accidental concealment and intentional concealment of a gun. Accordingly, the trial court convicted the defendant of Possessing a Concealed Firearm without a license to carry in violation of 18 Pa.C.S. § 6106.

Possession of a Concealed Firearm in Philadelphia

Outside of Philadelphia, § 6106 is a misdemeanor of the first degree when a defendant does not have any other record and is not facing any other charges. In Philadelphia, § 6106 is almost always charged as a felony of the third degree because there is a separate crime of carrying a firearm on the streets of Philadelphia (18 Pa.C.S. § 6108). § 6108 is almost always charged along with § 6106, making § 6106 a felony of the third degree instead of a misdemeanor because 6106 is only a misdemeanor when the defendant is otherwise eligible to carry a gun. Pennsylvania appeals courts have consistently ruled that a defendant is not otherwise eligible for purposes of the statute when they are charged with an additional offense at the same time. Following the conviction, the trial court sentenced the defendant to 7 – 14 months of incarceration.

The Defendant's Appeal

The defendant promptly appealed his conviction. On appeal, he argued first that the Act 235 Permit gave him the right to carry the firearm without a permit. Second, he argued that the trial court erred in finding that § 6106 was a strict liability offense, meaning an accidental concealment would not provide a defense. The Superior Court rejected the first argument, but it agreed with the second. Therefore, the Superior Court reversed the defendant’s conviction.

What is an Act 235 Certification? 

With respect to the Act 235 Certification, the Court quickly rejected the defendant’s claim. Section 6106 makes it unlawful for a defendant to “carr[y] a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter.” Section 6106 contains a number of exceptions to this general requirement, but possession of an Act 235 Certification is not one of them.

Instead, Act 235 requires privately employed agents who carry lethal weapons to attend an educational and training program established by the State Police Commissioner and provides for them to receive ‘certification’ when the program is satisfactorily completed. Thus, Act 235 provides additional requirements that a private security guard must meet in order to carry a gun at work; it does not give a private security guard the right to carry a gun when off-duty. Further, none of the other exceptions to 6106 such as those for law enforcement officers or private security guards applied to the defendant because the defendant was clearly not on duty at the time of his arrest despite his vague plans to go to work and training classes later in the day.

Section 6106 Requires Knowing, Intentional, or Reckless Concealment of a Gun 

With respect to the second claim, however, the Superior Court agreed with the defendant and reversed his conviction. The Court ruled that Section 6106 does require the Commonwealth to prove a mens rea. Although the statute itself contains no mens rea requirement and appears to be satisfied solely by the possession of a concealed firearm, the Pennsylvania Crimes Code contains a general provision that in the absence of a specified mens rea in a statute, a court should read in a default mens rea of recklessness. Recklessness involves the conscious disregard of a known risk. Thus, in order to prove a violation of the statute, the Commonwealth must show that a defendant knowingly, intentionally, or recklessly concealed the firearm. Here, the defendant testified that the concealment occurred by accident, and the trial court stated on the record that it probably believed him. Therefore, the Superior Court reversed the defendant’s conviction and remanded it for a new trial.  

Philadelphia Criminal Defense Lawyers for Gun Charges and Weapons Offenses

Philadelphia Criminal Defense Lawyers

Philadelphia Criminal Defense Lawyers

If you are charged with the illegal possession of a gun or other weapons offense, you need an experienced criminal defense attorney to evaluate your case, investigate for potential defenses, and provide you with all of the options. There are often defenses to gun charges ranging from motions to suppress, constructive possession, and accidental concealment. Our defense lawyers have successfully defended thousands of clients. Call 267-225-2545 now for a complimentary 15-minute criminal defense strategy session.  

Foregone Conclusion Doctrine Allows Government to Make Criminal Defendant Disclose Computer Password

Can The Police Make You Turn Over Your Computer Password?

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Davis, holding that the trial court properly ordered the defendant in a child pornography possession case to provide police with his computer password. Although the Third Circuit previously allowed prosecutors to obtain a similar order in a federal prosecution, Pennsylvania courts had not yet addressed the issue. Under this decision, prosecutors may now compel a defendant to produce the password to a computer or cell phone if the prosecution can satisfy the “foregone conclusion doctrine.”

In Davis, the defendant was charged with possession of child pornography and related offenses. Officers testified that they were able to download child pornography from the defendant using the eMule peer-to-peer file sharing network. As the officers were downloading the materials, they were able to determine the IP address of the computer that was uploading it. The officers then traced the IP address to the defendant’s internet account and house. They obtained a search warrant and executed the warrant at the defendant’s home. During the search, they seized a desktop computer which was protected by a special encryption software. The officers were unable to access the computer due to the encryption, and the defendant refused to provide them with the password.

The defendant did, however, make a number of inculpatory statements. He confirmed that he lived alone and that the computer was his. He told police he had prior arrests for child pornography, and he told them that he did not understand why it was illegal. He also stated that he liked 10, 11, 12, and 13 year olds, and he told police that the password was sixty-four characters and that he would not turn it over because “We both know what’s on there. It’s only going to hurt me.” The defendant then told the agents that he could not remember the password and that although the drive was encrypted, the agents already knew what was on the hard drive.

After the defendant was charged with two counts of distribution of child pornography and the criminal use of a communication facility, the Commonwealth filed a motion to compel the defendant to produce the password to the computer. The trial court granted the motion, and the defendant filed an interlocutory appeal to the Superior Court. Although a defendant may not ordinarily appeal a ruling on a pre-trial motion, the Superior Court permitted the defendant to appeal in this case under a limited exception to that general rule.

The Foregone Conclusion Doctrine

The Superior Court reached the merits of the appeal and concluded that the trial court properly ordered the defendant to produce the password under the foregone conclusion doctrine. The foregone conclusion doctrine is a limited exception to the general Fifth Amendment protection against self-incrimination. Ordinarily, a court may not compel a defendant to testify or say something that could incriminate him or her. For the Fifth Amendment to apply, however, the communication must be testimonial, incriminating, and compelled. Under the foregone conclusion doctrine, however, the courts have ruled that requiring a defendant to produce a password under certain circumstances is not testimonial because the government already knows that the defendant has the password. Thus, if the prosecution can show that the following three factors  are present, a defendant may be compelled to produce a passcode to a phone or computer. The factors are:

  1. The Government has knowledge of the existence of the evidence demanded,
  2. The defendant possessed or controlled the evidence, and
  3. The evidence is authentic.

The Government also must be able to describe with reasonable particularity the documents or evidence it seeks to compel.

Here, the Superior Court found that the foregone conclusion doctrine applied because it would not be testimonial for the defendant to give up the password. The Court found the police testimony showed that based on the investigation and the statements of the defendant, the Commonwealth knew the passcode existed, that it was within the control of the defendant, and that it was authentic. Further, based on the defendant’s incriminating statements, it was very likely that the computer would contain illegal child pornography. Therefore, the Court ruled that the trial court properly ordered the defendant to produce the password.

Fifth Amendment Implications of the Foregone Conclusion Doctrine

Clearly, the foregone conclusion doctrine drastically reduces the protections provided by the Fifth Amendment. By making a relatively limited showing that the defendant probably knows the password and the computer probably has illegal contraband on it, the Commonwealth may now essentially force a defendant to confess in that the act of providing the password further establishes that the defendant owns the computer and its contents.

This case also shows the importance of exercising your Fifth Amendment rights immediately when the police first show up and start asking questions. If the defendant had not admitted ownership of the computer, told police that he knew the password, and implied that police were correct in their assumption that the computer contained child pornography, the government may not have been able to satisfy the requirements of the foregone conclusion doctrine. It is absolutely critical that any suspect in a crime speak with an experienced criminal defense attorney before talking to the police as it is often very difficult for prosecutors to prove these types of cases without a confession. 

Award-Winning Philadelphia Criminal Defense Lawyers

Philadelphia Criminal Defense Lawyers

Philadelphia Criminal Defense Lawyers

If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of clients at the trial level on appeal. We offer a complimentary 15-minute criminal defense strategy session to anyone who is under investigation or facing criminal charges. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.